No-Fault [Verification]

Some good old fashioned No-Fault

The big one is Langan, which I posted about last week, and there is a little chatter about a footnote if you are interested.

A big change is coming to no-fault paradise. While you are there checking for the changes click on the NYFAIR thing–you will find NYFAIR's update on the Insurance Industry's 2011 agenda.

The Appellate Term, First Department published a slew of interesting cases, indicating a very sharp division between how the First and Second Department address peer review defenses, among other things.

Devonshire Surgical Facility Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50511(U) (App. Term, 1st 2011)

Since the plaintiffs' motion was based upon an alleged "change in the law that would change the prior determination," it was, in actuality, a motion for renewal (CPLR 2221[e][2]; see Daniels v Millar El. Indus., Inc., 44 AD3d 895 [2007]). While there is no time limitation in which to make a motion for leave to renew (see CPLR 2221[e]; Ramos v City of New York, 61 AD3d 51, 54 [2009], app withdrawn 12 NY3d 922 [2009]; Luna v Port Auth. of NY & N.J., 21 AD3d 324, 326 [2005]), plaintiffs failed to demonstrate that their delay in seeking renewal for over four years was, in fact, due to a change in the law.

Contrary to plaintiffs' contention, appellate authority in their favor long preceded the motion court's decision in 2005 (see Presbyterian Hosp. in City of NY v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]; Quality Med. Healthcare, P.C., v Lumberman's Mut. Cas. Co., 2002 NY Slip Op 50098[U] [2002]), and the case cited by plaintiffs does not represent a change in decisional law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 n 5 [2007]). Moreover, plaintiffs failed to present a reasonable justification for their lengthy four-year delay in seeking renewal (see Levy v New York City Health & Hosps. Corp., 40 AD3d 359, 360 [2007], lv dismissed 9 NY3d 1001 [2007]).

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50512(U)(App. Term, 1st 2011)

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant's documentary submissions established its receipt of plaintiffs' claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition to the plaintiffs' motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.

This is the first time I've seen anyone try SJ on the complaint (CPLR 3213)

Devonshire Surgical Facility, Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50513(U)(App. Term, 1st 2011)

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs' claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs' claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50514(U)(App. Term, 1st 2011)

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to grant (1) summary judgment in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000 and (2) partial summary judgment in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $7,835.29; and, as so modified, order affirmed without costs. The Clerk is directed to enter judgment accordingly (see Devonshire Surgical Facility v American Tr. Ins. Co., Cal. No. 11-012, decided simultaneously herewith).

Another SJ on the complaint.

Stephen Matrangalo, DC, PC v Allstate Ins. Co., 2011 NY Slip Op 50517(U)(App. Term, 1st 2011)

Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a "financial relationship" with plaintiff (see Public Health Law § 238-a[1][a], [b]). Civil Court granted the motion, and we now reverse.

Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a "financial relationship" with the health care provider (Public Health Law § 238-a[1][a]). A "financial relationship" is defined in section 238(3) of the Public Health Law as "an ownership interest, investment interest or compensation arrangement." Critically, a "compensation arrangement" means "any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider" (Public Health Law § 238-a[5][a]), but does not include "payments for the rental or lease of office space" if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[5][b][i]).

The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any "financial relationship" between plaintiff and the referring practitioner. No allegation is made that there was any "ownership interest" or "investment interest" between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant's limited submission failed to establish that there was any "compensation arrangement" in general or any "payments for the rental or lease of office space" in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

The Appellate Term, Second Department put out a few decisions as well.

A.M. Med. Servs., P.C. v Allstate Ins. Co., 2011 NY Slip Op 50436(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

In this action to recover assigned first-party no-fault benefits, the Civil Court (Diccia T. Pineda-Kirwan, J.), after a nonjury trial, awarded plaintiff "the sum of $10,196 plus statutory interest and attorney's fees." Thereafter, plaintiff filed a proposed judgment which included, among other things, the sum of $4,259.42 in attorney's fees.

On October 24, 2006, defendant filed a "Rejection of Proposed Judgment." In that rejection, defendant stated, insofar as is relevant to this appeal, that the award of attorney's fees should be limited to the sum of $850. On October 30, 2006, plaintiff received two checks from defendant, one in the amount of $27,173 (representing the principal plus interest) and one in the amount of $915 (representing attorney's fees of $850 plus filing fees), which plaintiff deposited. On December 4, 2006, a judgment was entered in favor of plaintiff, which included, among other things, the sum of $4,259.42 in attorney's fees. Thereafter, plaintiff submitted the judgment to the marshal's office for collection of the balance due thereunder, and the marshal sent a notice of execution to defendant. Upon receiving the notice, defendant moved, in effect, to vacate the notice of levy and sale of its property. By order entered July 21, 2009, the Civil Court (Maureen A. Healy, J.) granted defendant's motion. This appeal by plaintiff ensued.

A review of defendant's moving papers indicates that defendant sought to challenge so much of the judgment as had awarded plaintiff attorney's fees in the sum of $4,259.42. In LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the Court of [*2]Appeals reversed an order of the Appellate Division, Third Department (46 AD3d 1290 [2007]), which had held that attorney's fees in a no-fault action should be calculated on a per-claim, not a per-assignor, basis. Giving effect to an opinion letter of the Superintendent of Insurance (Ops General Counsel NY Ins. Dept. No. 03-10-04 [Oct. 2003]) which interpreted the Insurance Department regulation (Insurance Department Regulations [11 NYCRR] § 65-4.6) establishing the amount of statutory attorney's fees (Insurance Law § 5106 [a]) to be awarded, the Court of Appeals held that attorney's fees in no-fault actions are to be calculated based on the aggregate of all of the bills submitted by a provider with respect to each insured in any action, up to a maximum of $850. Since the regulation and the opinion letter of the Superintendent of Insurance fixing the proper method for calculating the amount to be awarded as attorney's fees pursuant to the regulation were extant at the time the judgment in the case at bar was entered; the Appellate Division ruling had not yet been handed down; the issue of the proper calculation of the attorney's fees due plaintiff had not at that time been determined by the court; and the assessment of the statutory attorney's fees pursuant to the Insurance Department regulation was, in essence, a ministerial matter, the clerk's mistake in entering a judgment which included attorney's fees in the sum of $4,259.42 was properly subject to correction by the Civil Court pursuant to CPLR 5019 (see Kiker v Nassau County, 85 NY2d 879 [1995] cf. Bank of NY v Carlucci, 289 AD2d 349 [2001] [where attorney's fees are not statutorily fixed, an award of attorney's fees is a substantive part of a judgment not subject to correction pursuant to CPLR 5019 (a)]). Accordingly, the order is affirmed and the matter is remitted to the Civil Court for the entry of a corrected judgment awarding plaintiff attorney's fees in the sum of $850.

Alur Med. Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50438(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

The affidavit submitted by defendant's claims examiner in opposition to plaintiff's motion and in support of defendant's cross motion was sufficient to establish that defendant's claim denial forms, which denied plaintiff's claims on the ground that the equipment provided was not medically necessary, were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The fact that there were handwritten notations on the claim denial forms did not [*2]affect their validity, and defendant was not, under these circumstances, required to provide a further explanation.

In addition, the affirmed peer review reports submitted by defendant's doctors were sufficient to establish a lack of medical necessity as they provided a factual basis and medical rationale for the doctors' determinations that there was a lack of medical necessity for the medical equipment at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). Contrary to plaintiff's assertions, the fact that the peer reviewers took into consideration medical records of other providers in formulating their opinions did not render the peer review reports inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor, which was sufficient to raise a triable issue of fact as to medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, plaintiff's motion for summary judgment should have been denied, and we leave undisturbed the denial of defendant's cross motion.

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 2011 NY Slip Op 50447(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

The affidavit of defendant's litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The mere denial by plaintiff's medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004]; Morales v Yaghoobian, 13 AD3d 424 [2004]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's motion for [*2]summary judgment dismissing the complaint was properly granted, as defendant's time to pay or deny the claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

And there was a very interesting decision from a lower court.

Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 2011 NY Slip Op 50500(U) (Dist Ct Nassau County, Second Dist)

In short, there appears to be no basis in the law, and no basis in logic, for accepting an affirmed peer review doctor's opinion, carte blanche, without scrutinizing the report's contents. As plaintiff's counsel cogently argues, "[e]very peer review report is different and requires individual scrutiny to determine whether or not in contains a [sufficient] factual basis and medical rationale." The Court agrees that such scrutiny is necessary and appropriate before it decides whether the burden should be shifted back to the plaintiff to submit contrary expert proof. If the plaintiff can demonstrate, through references to the medical records or otherwise, that the peer review doctor's opinion lacks a sufficient "factual basis" and/or "medical rationale" because it is conclusory, or because it fails to address essential factual issues or is based upon disputed or apparently incorrect facts, the defendant's motion should be denied regardless of whether plaintiff submits expert proof of its own.

In the instant matter, plaintiff's opposition points to such shortcomings in the peer review report. The peer review doctor's opinion rests, in large part, upon his factual assumption that the medical records failed to document "persistent radicular symptoms". However, as plaintiff's counsel demonstrates, this assertion is contradicted by the very medical records that defendant's expert reviewed.

Notably, the reports of claimant's treating physicians document, over a course of nearly a month, the persistence of radiating pain in claimant's neck and back. Several weeks after claimant's accident, his family physician, Dr. Grigoran, performed a physical examination which resulted in an assessment of "cervical radiculopothy." Upon Dr. Grigoran's referral to a neurologist, Dr. Kahn, claimant was examined again. Despite having undergone weeks of conservative treatment, claimant was still suffering from "frequent" neck and back pain, accompanied by "numbness". A cervical compression test was "positive" for "radicular symptomology." So, too, the results of a Spurling test were reported as "positive".

In light of theses symptoms and test results, Dr. Kahn's diagnosis included findings of "Cervical/Lumbar radiculopothy," and "Cervical radiculitis." His recommendations included the performance of EMG/NCS tests of the cervical/lumbar spine and upper/lower extremities "to elucidate the degree and location of compression on existing nerve roots and peripheral nerves." Not surprisingly, the electro-diagnostic test results revealed "an abnormal study, consistent with a left C5-6 and right L4-5 and L5-S1 radiculopothy."

When such test results are viewed together with claimant's well documented medical history, it is difficult to accept, at face value, the peer review doctor's factual assumption that he found no evidence of "persistent radicular symptoms" which may have justified Dr. Kahn's decision to recommend electro-diagnostic testing. Moreover, in the peer doctor's description of the accepted standards and protocols for electro-diagnostic testing, defendant's peer review doctor acknowledges that such tests may be medically appropriate for patients whose radicular symptoms "are persistent or unresponsive to initial conservative treatments."

In the face of the medical record evidence, cited above, and the absence of proof of a more definitive, clear cut standard for prescribing electro-diagnostic tests, plaintiff's opposition makes a convincing case that defendant's moving papers fail to meet its burden. To a significant extent, the peer review doctor's opinion rests upon conclusory assumptions and disputed or incorrect facts. Consequently, such an opinion, by itself, is insufficient to prove defendant's entitlement to judgment as a matter of law on its lack of medical necessity defense. In these circumstances, the absence of opposing expert proof from plaintiff is immaterial.

The no-fault

Appellate Division

M.N. Dental Diagnostics, P.C. v Government Employees Ins. Co., 2011 NY Slip Op 01333 (App. Div., 1st 2011)

Insurance Law § 5105(b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12(b) provides that "[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part."

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not "otherwise [] liable" for the payment of first-party benefits. However, 11 NYCRR 65-4.11(a)(6) provides that "any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section." Thus, as "the first insurer to whom notice of claim [was] given" (11 NYCRR 65-3.12[b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff's claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which "[c]learly . . . is an inter-company dispute subject to mandatory arbitration" (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]).

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (App. Div., 2nd 2011)

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff's claim. The defendant's denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and should have denied the defendant's cross motion for summary judgment dismissing the complaint.

Appellate Term

Edison Med. Servs., P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 50193(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant's law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

There is a Golia dissent.

GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50194(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants' employers' standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel's former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50184(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50188(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The papers submitted in support of defendant's cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers' opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

No-Fault with a tiny tiiiiiny tap of CPLR

caddyshack

CPLR R. 2214 Motion papers; service; time

CPLR R. 4518 Business records

22 NYCRR § 208.17 Notice of trial where all parties appear by attorney.

22 NYCRR § 208.4 Papers filed in court; index number; form; label.

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentis

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

A relative ton of no- fault decisions came out today from the Appellate Term, Second Department. Again, I'm not posting them because you care, but because It's easy for me to find cases when I post them. For serious discussion, head over to JT and NFP.

There are, however, some interesting procedural nuances in the decisions, making them almost relevant here.

PEERS

Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

We note, at the outset, that plaintiff's "Supplemental Affirmation in Opposition" is, in reality, a sur-reply, for the submission of which no showing of "good cause" had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d 463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant's papers established, prima facie, based on objective medical evidence, that the assignor's injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Read JT's comments.

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant's independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant's moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant's motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

There is a Golia dissent.

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co., 2010 NY Slip Op 51452(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR R. 3212(f)

VERIFICATION

Eagle Surgical Supply, Inc. v Travelers Indem. Co., 2010 NY Slip Op 51456(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant's litigation examiner did not even allege that the requested verification was outstanding, and defendant's attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant's non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

There is a Golia "atta boy" at the end.

Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).

In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.

While defendant has failed to demonstrate that it is not precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), in any event, defendant is not precluded from raising the defense of fraudulent procurement of the insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). The certified transcripts of plaintiff's assignors' examinations under oath, annexed to defendant's motion papers, support defendant's assertion that the assignors' testimony at an examination before trial would be material and necessary to the defense of fraudulent procurement of an insurance policy (see CPLR 3101 [a]). Since plaintiff served the notice of trial two weeks after defendant served its answer and it is uncontroverted that defendant timely moved to vacate the notice of trial within 20 days of its receipt of same (see Uniform Rules for Civ Ct [22 NYCRR] § 208.17 [c]), the branch of defendant's motion seeking to strike the notice of trial is granted. However, as plaintiff's assignors are not directors, members or employees of plaintiff, defendant must subpoena them to compel their appearance at examinations before trial (see CPLR 3016 [b]; see also A.M. Med. Servs., P.C. v Allstate Inso Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007, the branch of defendant's motionseeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.

So the NOT was stricken so that defendant could issue a non-party subpoena for an EBT. What happens when the non-party doesn't appear, assuming, of course, that the non-party doesn't appear. It would make sense for the Appellate Term to provide some guidance. Read JT's comments.

Almost forgot. There is an article in the NYSBA journal on non-party discovery by David Horowitz.

Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51455(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The "who cares if he doesnt know how he knows, he's a partner" exception to Fogel.

MVAIC (condition precedent or coverage or both)

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 51454(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Under the circumstances presented, the Civil Court should have considered the affidavit submitted by MVAIC's claim representative rather than sua sponte rejecting it due to a de minimis violation of Uniform Rules for the Civil Court (22 NYCRR) § 208.4. The submissions in support of MVAIC's motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]), and plaintiff failed to demonstrate that its assignor had timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). Consequently, defendant's motion for summary judgment should have been granted. Accordingly, the judgment is reversed, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

NOT NO-FAULT

Ferrara v De Ming Song, 2010 NY Slip Op 51472(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The Civil Court granted defendant's motion, finding that defendant had made out a prima facie case and that, among other things, the affirmed reports of plaintiff's medical provider in Florida, submitted in opposition to defendant's motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.

Plaintiff thereafter moved for leave to renew defendant's motion and, upon renewal, to deny defendant's motion for summary judgment on the ground that triable issues of fact exist. In support of the motion, plaintiff submitted an affidavit from his Florida medical provider, sworn to before a notary public commissioned by the State of Florida, and resubmitted the provider's reports. The Civil Court granted plaintiff's motion for leave to renew and, upon renewal, denied defendant's motion for summary judgment on the condition that plaintiff's attorneys pay the sum of $100 to defendant's attorneys as costs, and the sum of $100 to the New York State Lawyers Fund for Client Protection. This appeal by defendant ensued in which the sole issue raised is that the Civil Court erred in granting plaintiff leave to renew.

Contrary to defendant's contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff's motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 [e]; Arkin v Resnick, 68 AD3d 692 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Joseph v Joseph, 24 Misc 3d 141[A], 2009 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]). We note that defendant has raised no objection to the form of plaintiff's resubmitted papers.

Nicholas Cabrini, Inc. v Hagenbart, 2010 NY Slip Op 51443(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR 3123 (a) requires a party to respond to a notice to admit within 20 days of service of the notice "or within such further time as the court may allow," and further provides that "the party to whom the request is directed [must] serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matters" (emphasis added).

After reviewing defendants' response to plaintiff's notice to admit, wherein defendants explained why they could not either admit or deny the first item in plaintiff's notice to admit and denied the other two items in the notice, we find that the Civil Court properly determined that defendants' response was not so evasive as to be a nullity.

Turning to the timeliness of defendants' response to the notice, in Alford v Progressive Equity Funding Corp. (144 AD2d 756 [1988]), a case analogous to the instant case, the plaintiffs moved for summary judgment on December 2, 1987, based on the defendants' failure to respond to the plaintiffs' notice to admit, which had been served on November 5, 1987. On December 7, 1987, the defendants served a response to the plaintiffs' notice to admit. The Supreme Court denied the plaintiffs' motion for summary judgment, and, on appeal, the Appellate Division, Third Department, held that the Supreme Court had properly exercised its discretionary power to extend the time within which the defendants had to respond to the plaintiffs' notice to admit. The Appellate Division further held that since the defendants had not admitted all of the material facts at issue, the Supreme Court had properly denied the plaintiffs' motion for summary judgment.

Similarly, defendants in the case at bar were 15 days late in serving their response to plaintiff's notice to admit. Thus, the Civil Court did not improvidently exercise its discretion in extending the time within which defendants had to respond to the notice. Since defendants have not admitted all of the material facts at issue, the Civil Court properly denied the branch of plaintiff's motion which sought summary judgment (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

What, no cite to Dan Med? Bajaj? I'm disappointed. If any of you want to read further on the use of NTAs in no-fault. I co-authored an article in the NYLJ on the issue with Dave Barshay, the new author of NFP, and while the AT has not seen fit to cite to it, the Appellate Division has. Click here to get all the links and what not.