Dassa Orthopedic Med. Servs. PC v Amica Mut. Ins. Co. (2019 NY Slip Op 51664(U))

741615/17

Pryanka Arora, Esq.

Law Office of Natalia Vassilieva, P.C.

3042 Ocean Avenue, 1st Floor

Brooklyn, NY 11235

Lawrence N Rogak, Esq.

Lawrence N Rogak LLC

3355 Lawson Boulevard

Oceanside, NY 11572

RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3, 4

Affirmation in Opposition 5

The Court hereby sua sponte vacates its decision and order dated June 9, 2019, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an [*2]accident which occurred on November 30, 2015 in New Jersey, defendant moves for summary judgment based on a lack of New York insurance coverage as well as for a determination that New Jersey law applies to this action. Plaintiff, a New York corporation which rendered medical services in New York to its assignor, a New York resident, opposes defendant’s motion and cross-moves for summary judgment in its favor seeking payment of bills submitted in the amount of $3,745.37 based on the bills and an affidavit showing that the plaintiff had mailed them to the defendant more than thirty days prior to starting suit and had not received any denials of benefit.

The basis of defendant’s motion is the claim that plaintiff will be unable to submit proof that defendant’s policy covers the subject incident. To maintain a meritorious action, defendant claims plaintiff “must necessarily establish that either 1) the underlying policy under which NYS statutory no-fault benefits are sought contained a mandatory NYS PIP endorsement, and/or 2) that the actual motor vehicle accident giving rise to plaintiff’s claim occurred within New York State.” Defendant also argues that the laws of New Jersey should be applied since “The claimant was a pedestrian struck by a vehicle insured under a New Jersey policy.”

To support these claims, the defendant submits an uncertified copy of a police report purporting to show that the subject accident occurred in New Jersey and an affidavit from its claim representative Ms. Outhouse which simply states that defendant’s policy does not cover the alleged incident based on her review of the file.

As the plaintiff has not objected to the admissibility of the police report, its contents will be considered by the court. See, Bank of NY Mellon v Gordon 171 AD3d 197 [2d Dept 2019]. The police report indicates that the subject accident occurred in New Jersey between a pedestrian who resided in New York and a New Jersey driver driving a vehicle registered in New Jersey.

Plaintiff responds that New York law should apply as it is a New York corporation which rendered treatment to a New York resident in New York. Additionally, the plaintiff argues that the defendant has failed to produce a copy of its policy and thus failed to show its lack of a New York State no-fault endorsement.

New York utilizes the ‘grouping of contacts’ or ‘center of gravity’ analysis as the appropriate approach to resolve choice of law questions in cases premised on breach of contract. The ‘grouping of contacts’ approach seeks to determine which state has the most significant relationship to the contract or the parties. (See Matter of Arbitration between Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993], revg 178 AD2d 899 [3d Dept 1991]. The court must consider the spectrum of significant contacts, rather than a single possible gratuitous event, in its determination as to which state has the most significant relationship to the parties or the contract. (Id. See also, Matter of Eagle Ins. Co. v. Singletary, 279 AD2d 56 [2d Dept 2000]). Among the contacts to be considered are the state where the parties entered into the contract, negotiated and performed the contract, the domicile of the parties, and the place of subject matter of the contract. In the context of insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk. See Matter of Midland Ins. Co., 16 NY3d 536 [2011], revg 71 AD3d 221 [1st Dept 2010].

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., 38 Misc 3d 140(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2013], the court applied a ‘grouping of contacts’ or ‘center of gravity’ analysis to a first-party no-fault case in which the plaintiff’s assignor was injured in a motor vehicle accident which occurred in New York. The vehicle in question was [*3]being driven by a New Jersey resident who owned the vehicle which was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York. In that case, the court held that New Jersey law applied.

When dealing with procedural matters, such as the burden of proof and the admissibility of evidence, the law of the forum state applies. (See, Emmons v Country Lincoln Mercury Sales, Inc., 111 AD2d 213 [2d Dept 1985]; Able Cycle Engines, Inc. v Allstate Ins. Co., 84 AD2d 140 [2d Dept 1981]). Contrary to defendant’s contention, as the movant for summary judgment, the burden of proof is on the defendant to establish its policy does not cover the subject incident and that the laws of New Jersey apply to this case.

To prevail, the movant must establish entitlement to judgment as a matter of law by submitting admissible evidentiary proof (Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]), with which includes an affidavit of a person having knowledge of the facts and other admissible evidence (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965 [1985]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact. (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). The court’s function in determining such a motion, is issue finding, not issue determination. (Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]).

In the case at bar, defendant submits no admissible evidence to establish its policy does not cover the subject incident. Ms. Outhouse’s affidavit states defendant’s policy does not cover the subject incident based on her review of the claim file. However, she does not specify what records she reviewed, including whether she even reviewed defendant’s subject insurance policy at issue. Ms. Outhouse further makes no attempt to establish the foundation of any reviewed records nor proffer the records for the court’s review. In fact, Ms. Outhouse does not even state whether she reviewed defendant’s subject insurance policy, nor does she submit a copy in support of defendant’s motion.

The contents of business records are inadmissible without the introduction of the records themselves. (See, Bank of NY Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]), and it is far from clear here what contents of what records Ms. Outhouse relied upon. Accordingly, Ms. Outhouse’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]). Similarly, the defendant’s failure to proffer its insurance policy or any admissible evidence as to its contents leaves open the possibility that the policy covering the subject accident was issued in New York or otherwise contains a New York no-fault endorsement which would permit the application of New York law. The defendant has failed to sustain its burden of proof to establish either that its policy does not cover the subject incident or that the laws of New Jersey apply to this case. Accordingly, defendant’s motion is denied.

Plaintiff seeks summary judgment based upon proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant failed to pay or deny the claim within the requisite 30-day period. Defendant neither rebuts the sufficiency of the proof of claim nor submits either proof of payment or any denials.

In New York, a no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the [*4]claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2nd Dept 2006].

Plaintiff’s motion must nonetheless be denied. Although the defendant failed to dispel all issues of fact as to whether this case should be controlled by New Jersey law, its submission of the police accident report without objection by the plaintiff sufficiently raises an issue of fact regarding which state’s substantive law should be applied to this case.

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., the court pointed out that a conflict does exist between New York law and New Jersey law, since under New Jersey law, unlike New York Law, a provider has the burden to establish that the provided services were medically necessary, and this defense is non-precludable, that is, an insurer can raise a lack of medical necessity defense at any time.

Under New Jersey law, as the defendant has failed to show that the plaintiff’s assignor was, under a different insurance policy, a “named insured” or “a resident relative in [a] named insured’s household,” as those terms are used in N.J. Stat. § 39:6A-4.2, this case would fall under N.J. Stat. § 39:6A-4 which provides that no-fault (PIP) coverage is afforded to pedestrians injured by a qualifying automobile. See e.g., Lumpkins v Mkt. Transition Facility of New Jersey, 283 NJ Super 181 [Super Ct 1995]. Plaintiff has shown by admissible evidence that it gave defendant timely notice within twenty-one days of commencement of treatment as required by N.J. Stat. § 39:6A-5(a). Plaintiff additionally has shown that its bills are overdue, both as that term is defined by N.J. Stat. § 39:6A-5(g) and by our own 11 NYCRR 65-3.8(a). Plaintiff has not, however, submitted evidence proving the medical necessity of the services it rendered.

Accordingly, plaintiff’s cross-motion is granted only to the extent that it has proven that bills totaling $3,745.37 were timely submitted to the defendant and that no denial was issued. Defendant has raised a triable issue of fact as to whether New Jersey law should apply to this case. Should the defendant prove at trial that its policy in question contains only a New Jersey no-fault (PIP) endorsement and not a New York no-fault endorsement, then the plaintiff shall bear the burden of proving the medical necessity of the services it rendered.

Defendant’s motion is denied and plaintiff’s cross-motion is granted only to the extent indicated. This constitutes a decision and order of the court.

Dated: October 22, 2019

________________________

HON. ODESSA KENNEDY

Judge of the Civil Court