[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 16, 2012

APPEARANCES OF COUNSEL

Methfessel & Werbel, New York City (Frank J. Kennan of counsel), for appellant. Law Offices of Damin J. Toell, P.C., Brooklyn (Damin J. Toell of counsel), for respondent.

{**37 Misc 3d at 68} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits for dental services provided to plaintiff’s assignor as a result of injuries sustained in an automobile accident, the record indicates that, subsequent to the assignment of benefits from plaintiff’s assignor to plaintiff and the provision of dental services by plaintiff to its assignor, defendant Preferred Mutual Insurance Company commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff’s assignor based upon his alleged misrepresentation of his residence when applying for insurance. By order dated October 25, 2004, the Supreme Court granted Preferred’s motion for summary judgment in the declaratory judgment action, and declared that Preferred was “not obligated to provide no-fault benefits or defend any claims for bodily injury or property damage on [its] policy issued to [Oba Connor, plaintiff’s assignor].” Several years later, plaintiff commenced the instant no-fault action, and Preferred moved for summary judgment dismissing the complaint, contending that this action was barred by virtue of the Supreme Court’s order. The Civil Court denied defendant’s motion.

Plaintiff herein was neither named nor served in the declaratory judgment action nor, at the time, was it in privity with its assignor, who was a named party in that action, as the assignment of benefits had been executed before the declaratory judgment action had been commenced, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in that proceeding. Consequently, the instant action is not subject to dismissal by virtue of the order in the declaratory judgment action (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept,{**37 Misc 3d at 69} 2d, 11th & 13th Jud Dists 2010]). As a result, Preferred’s [*2]motion for summary judgment was properly denied.

Accordingly, the order of the Civil Court is affirmed.

Weston, J.P., Rios and Solomon, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 16, 2012

APPEARANCES OF COUNSEL

Rubin, Fiorella & Friedman LLP, New York City (Jason W. Moussourakis and Joseph R. Federici of counsel), for appellant. Law Offices of Bruce Newborough, P.C., Brooklyn (Damin J. Toell of counsel), for respondent.

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

Memorandum.

Ordered that the order is reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

EBM Medical Health Care, P.C. commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an automobile accident. While this no-fault action was pending, Republic Western Insurance commenced a declaratory judgment action in Supreme Court, New York County, against EBM, alleging that EBM was not properly licensed under Business{**38 Misc 3d at 3} Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c), and therefore was not eligible to recover no-fault benefits. A judgment was entered, on default, in the declaratory judgment action, declaring “that EBM Medical Health Care, P.C. is not properly licensed under Business Corporation Law 1507 and 1508 and Education Law 6507 (4) (c)” and that Republic had no duty to pay no-fault benefits to EBM “arising out of any current or future proceeding.” After the judgment in the declaratory judgment action had been entered, Republic moved in this no-fault action for summary judgment dismissing EBM’s complaint, contending that this action was barred by virtue of the declaratory judgment. The Civil Court denied Republic’s motion, finding, among other things, that Republic had not established that the term “current” proceeding, as used in the declaratory judgment, applied to the instant action.

Based upon the declaratory judgment, the instant action is barred under the doctrine of res judicata (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the judgment of the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). [*2]Contrary to EBM’s contention, the declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). The instant no-fault action was pending at the time the declaratory judgment was entered, and therefore, pursuant to the unambiguous language used in the judgment, this action falls within the ambit of the declaratory judgment as a “current” proceeding. Accordingly, the order of the Civil Court is reversed and Republic’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Solomon, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, September 19, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**37 Misc 3d at 91} OPINION OF THE COURT

Memorandum.

Ordered that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the third through ninth causes of action are denied; as so modified, the order is affirmed, without costs.{**37 Misc 3d at 92}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions regarding “treatment” and plaintiff’s “billing practices.” In opposition to plaintiff’s motion, defendant proffered the defense that Drs. Mayard and Berardi had failed to appear for examinations under oath (EUOs). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment because it had violated Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) by [*2]scheduling the EUOs outside the county in which plaintiff is located, and that defendant had “failed to establish a wilful noncompliance with the EUO request.”

Since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Furthermore, we find that the defenses upon which defendant bases its request for the depositions of Dr. Mayard and Dr. Berardi, regarding “treatment” and plaintiff’s “billing practices,” are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Accordingly, defendant is not entitled to the denial of plaintiff’s motion pursuant to CPLR 3212 (f) or to have its cross motion to compel the depositions granted (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71, 73 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s motion for summary judgment, we find that the branches of the motion seeking summary judgment on the first two causes of action were properly granted. Defendant admits that it received plaintiff’s claims comprising those causes of action on December 26, 2006 and December 29, 2006, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Nor does defendant claim that the EUOs of Drs. Mayard and Berardi were requested, or pending, during that time. We note that defendant’s January 15, 2007 letter purporting to delay payment of the claims is insufficient to toll the 30-day statutory time period{**37 Misc 3d at 93} within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Accordingly, defendant failed to demonstrate that these two claims had been timely denied and therefore it has not established that its defense, that plaintiff failed to comply with a condition precedent to coverage, is not precluded as to these two causes of action (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

However, defendant did raise a triable issue of fact with respect to the third through ninth causes of action by demonstrating that the time to pay or deny the claims comprising those causes of action had been tolled by the timely issuance of EUO scheduling letters, that the doctors had failed to appear for either of two properly scheduled EUOs, and that the claims had been timely denied on April 10, 2007 (see ARCO Med. N.Y., P.C., 2011 NY Slip Op 52382[U]).

We note that there is no merit to the reasons given by the Civil Court in finding that defendant had not raised a triable issue of fact in response to plaintiff’s motion for summary judgment. First, there is nothing in the no-fault regulations prohibiting an insurer from scheduling an EUO outside the county in which the applicant is located (cf. CPLR 3110 [regarding where a deposition shall be taken]). Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) requires only that “[a]ll examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant,” and the Civil Court did not make a finding that the location chosen for the subject EUOs was not reasonably convenient to the applicant. Furthermore, appearance at an EUO is a [*3]condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; 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 Dept, 2d, 11th & 13th Jud Dists 2009]), and there is no requirement that defendant establish willful noncompliance with an EUO request.

In light of the foregoing, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the third through ninth causes of action are denied.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 12, 2012

APPEARANCES OF COUNSEL

Law Offices of Karen C. Dodson, New York City (Michael L. Rappaport of counsel), for appellant. Law Office of Ilona Finkelshteyn, Brooklyn (Emilia Rutigliano and Jonathan R. Vitarelli of counsel), for respondent.

{**37 Misc 3d at 20} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered April 28, 2008, limited the trial to the issue of the medical necessity of the supplies provided. At the nonjury trial, defendant proffered the testimony of Dr. Susan Corcoran, the physician who had prepared the peer review report upon which the denial of the claim at issue had been based. Dr. Corcoran testified that she had obtained the facts of the case from, among other things, the claim form, the medical records (which she listed in her report), and the police accident report. The claim form was admitted into evidence without objection, but [*2]the court sustained plaintiff’s objections to the admission into evidence of other documents, including the medical records. While Dr. Corcoran testified that she could conclude that certain items, such as the cervical pillow or the lumbar cushion, were not medically necessary based solely upon the information contained in the claim form—because she had never seen such equipment used to treat an injury of any sort—she ultimately did not attempt to proffer any testimony which would have required her to refer to documents which the court had previously held were inadmissible.

Defendant’s employee, Jemma Keating, testified as to, among other things, defendant’s practices and procedures when it receives medical documentation concerning an eligible injured person. When defendant sought, for the second time, to admit the medical documentation into evidence, the Civil Court again sustained plaintiff’s objection. The court then granted plaintiff’s motion for judgment in the entire amount sought in the complaint. A judgment was subsequently entered, from which defendant appeals.{**37 Misc 3d at 21}

The question before the court is whether defendant was entitled to have the medical records submitted to it by plaintiff (or plaintiff’s assignor or other medical professionals who had provided services or supplies to plaintiff’s assignor) admitted into evidence so as to enable Dr. Corcoran to testify regarding her expert opinion that the medical supplies at issue were not medically necessary—an opinion she reached after reviewing this medical documentation. We conclude, for the reasons set forth below, that the medical documentation should have been admitted into evidence and, thus, we reverse the judgment and remit the matter to the Civil Court for a new trial to afford defendant an opportunity to establish its defense of lack of medical necessity.

The basis for this action is plaintiff’s claim that it provided medically necessary supplies to its assignor for injuries arising from a covered accident, and that it was not paid for these supplies. In a no-fault case, submission of a properly completed claim form is all that is needed to establish, prima facie, that the supplies at issue were medically necessary (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2003]), and, upon a demonstration that the claim form is admissible pursuant to the business records exception to the hearsay rule (CPLR 4518), the claim form will constitute sufficient prima facie evidence of the fact and the amount of the loss sustained (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Here, in limiting the trial to the issue of the medical necessity of the supplies provided, the Civil Court implicitly found that plaintiff had established these elements. In other words, plaintiff, as the assignee of benefits under a no-fault insurance policy, demonstrated its entitlement, in the first instance, to recover payment for providing medical supplies to its assignor, without having to proffer any specific testimony or proof as to the facts underlying its claim, including the injury sustained or the treatment rendered by the prescribing physician, or to affirmatively demonstrate that the supplies{**37 Misc 3d at 22} were medically necessary. The burden then shifted to defendant to establish a lack of medical necessity.^[FN*] [*3]

However, recognizing that it would be impossible for an expert witness to proffer an opinion regarding the medical necessity of the supplies at issue without discussing the facts underlying the claim, plaintiff argues that defendant must now prove those facts itself before being allowed to present its defense that, based upon the information provided to it regarding the injury sustained and the treatment rendered, it had correctly denied the claim on the ground that the supplies were not medically necessary. We reject plaintiff’s argument.

A no-fault insurer cannot know with certainty, merely based upon reviewing medical records, what injuries a patient sustained or how he was treated—it can only act on what it has been told. The insurer is, however, permitted to deny a no-fault claim based upon a peer review report which opines that there was a lack of medical necessity for the services or supplies provided (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [b] [4]). It follows that an insurer is entitled, or even expected, to rely on the documents submitted to it by the eligible injured person (and such person’s assignees, who stand in the shoes of the assignor [see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 (2007)]), when determining whether to pay a claim or to deny it on the ground that the services or supplies provided lacked medical necessity.

However, in denying a claim for a lack of medical necessity based upon a peer review report, an insurer is not seeking to establish the truth of the facts set forth in the medical documentation submitted to it. Instead, as this court has previously explained, the insurer is merely stating that, assuming the facts set forth in the medical documentation are true, it is not required to pay for the services or supplies at issue because they were not medically necessary to treat the alleged injury (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, we reiterate that, in this context, the medical records are not being used for a hearsay purpose, but rather only to demonstrate that the information contained therein had been{**37 Misc 3d at 23} conveyed to defendant (see Quiroa v Ferenczi, 77 AD3d 901, 901 [2010]; Gelpi v 37th Ave. Realty Corp., 281 AD2d 392 [2001]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]). Here, there was testimony sufficient to establish that the medical documentation reviewed by Dr. Corcoran had in fact been submitted to defendant by plaintiff, plaintiff’s assignor, or other medical professionals who had provided no-fault benefits to plaintiff’s assignor. Accordingly, it was error to sustain plaintiff’s objection to the admissibility of the records.

We note that the holdings in Hambsch v New York City Tr. Auth. (63 NY2d 723 [1984]) and Wagman v Bradshaw (292 AD2d 84 [2002]), where the plaintiffs’ expert witnesses sought to rely on out-of-court medical records in order to prove the fact of the plaintiffs’ injuries, are not relevant to the instant case, since defendant is not relying on the medical documentation at issue to prove the fact of plaintiff’s assignor’s injuries.

In view of the foregoing, the judgment is reversed and the matter is remitted to the Civil Court for a new trial. [*4]

Pesce, P.J., Rios and Aliotta, JJ., concur.

Footnotes

Footnote *: Assuming the insurer is successful in satisfying its burden, it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 27, 2012

APPEARANCES OF COUNSEL

Law Offices of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant-respondent. Law Offices of Daniel J. Tucker, New York City (Netanel BenChaim of counsel), for respondent-appellant.

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

Memorandum.

Ordered that the order is modified by providing that the branch of plaintiff’s motion seeking a final order of preclusion is granted; as so modified, the order is affirmed, without costs.{**36 Misc 3d at 28}

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a “so-ordered” stipulation in which defendant agreed to serve responses to plaintiff’s interrogatories within 60 days of the date of the “so-ordered” stipulation or be precluded from offering evidence at trial. After defendant failed to serve its responses by the specified date, in fact serving them more than one year later than required, plaintiff moved for a final order of preclusion and, upon preclusion, for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion, finding that plaintiff had not been prejudiced by the late service of the responses, and denied defendant’s cross motion, on the ground that there were issues of fact precluding summary judgment. Both parties appeal.

The “so-ordered” stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’s failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52283[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Nevertheless, plaintiff moved for a final order of preclusion. Although it was unnecessary for plaintiff to make such further application to the court, in doing so, plaintiff authorized the court to revisit the issue of preclusion and to consider defendant’s opposition thereto. In order to avoid the adverse impact of the stipulation, defendant was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation, as well as the existence of a potentially meritorious defense to [*2]the action (see Kirkland v Fayne, 78 AD3d 660 [2010]). While defendant may have demonstrated a potentially meritorious defense to the action, it failed to demonstrate any excuse for its failure to timely comply with the stipulation. The Civil Court denied plaintiff’s motion for preclusion and, upon preclusion, for summary judgment, thereby, in effect, vacating the final order of preclusion, which had become absolute. In our opinion, this was an improvident exercise of discretion since defendant did not offer any excuse for its 13-month delay in complying with the stipulation. Accordingly, the branch of plaintiff’s motion seeking a final order of preclusion should have been granted.

A defendant’s preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment{**36 Misc 3d at 29} or relieve the plaintiff of the burden of proving its case (see Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1 [2011]). In the instant case, plaintiff’s moving papers failed to establish a prima facie entitlement to summary judgment (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the Civil Court properly denied the branch of plaintiff’s motion seeking summary judgment.

On appeal, defendant argues that it was not precluded from offering evidence in support of its cross motion for summary judgment because the so-ordered stipulation barred it only from offering evidence “at trial.” However, to allow defendant to use evidence in support of its cross motion which it is barred from introducing at trial “would perversely undermine the point of the order by allowing defendant to benefit from the shortcut of summary judgment by use of the same evidence that otherwise would have been barred at trial” (Mendoza, 83 AD3d at 9). Accordingly, defendant’s cross motion for summary judgment, which sought to establish that the equipment provided by plaintiff was not medically necessary, was properly denied, albeit on grounds other than those set forth by the Civil Court.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 4, 2012

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**35 Misc 3d at 51} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on condition that, within 60 days, defendant serve and file the moving affidavit of Marcy Gonzalez, accompanied by a certificate of conformity in compliance with CPLR 2309 (c).

Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors had failed to appear for scheduled examinations under oath (EUOs). In support of its motion for summary judgment dismissing the complaint, defendant submitted several affidavits, which, among other things, sufficiently set forth defendant’s procedures for mailing EUO scheduling letters and denial of claim forms (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]). In opposition to defendant’s motion, plaintiff argued that the certificate of conformity which accompanied the affidavit of Marcy Gonzalez, defendant’s claims representative, did not comply with CPLR 2309 (c). While an affidavit which is executed outside of New York State must be accompanied by a certificate of conformity, a court may permit a party to secure such certificate later and give it nunc pro tunc effect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, the Civil Court did not improvidently exercise its discretion when it afforded defendant an opportunity to cure the defect within 60 days by submitting a certificate of conformity in compliance with CPLR 2309 (c). Plaintiff’s remaining contentions lack merit.{**35 Misc 3d at 52} [*2]

Accordingly, the order conditionally granting defendant’s motion for summary judgment is affirmed.

We note that our review is limited to the order entered February 9, 2009 and we do not pass upon whether any certificate of conformity subsequently submitted by defendant complied with CPLR 2309 (c), as said issue is not properly before this court on this appeal.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 2, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**36 Misc 3d at 42} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

This action by providers to recover assigned first-party no-fault benefits was “marked off” the trial calendar on September 25, 2009. On May 26, 2010, plaintiffs moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In a supporting affirmation, plaintiffs’ counsel stated that plaintiffs were “prepared to proceed to trial, and . . . to present proof . . . that payment of no-fault benefits [was] overdue.” In opposition, defense counsel argued that prosecution of the claims of plaintiff Painless Medical, P.C. could not be pursued because Dr. Ronald Collins, the sole shareholder, officer and director of Painless Medical, P.C., had passed away on September 15, 2008, and Anna Val, Esq., who had been appointed as the administrator of the estate of Dr. Collins on September 9, 2009, had no authority over Painless Medical, P.C. Defendant argued, among other [*2]things, that Ms. Val lacked the capacity to administer or become a shareholder of Painless Medical, P.C. because she did not possess a license to practice medicine, which is a requirement of Business Corporation Law §§ 1507 and 1508, and, therefore, she was not entitled to pursue pending litigation or collect settlements and judgments involving this provider.

“[A] corporation can act only through its officers and agents” (14A NY Jur 2d, Business Relationships § 627; see also 14A NY Jur 2d, Business Relationships § 614). Upon Dr. Collins’ death, Painless Medical, P.C. continued to exist (see Business Corporation Law § 1510), but was powerless to continue prosecuting its claims in this action until there was someone with authority who could authorize proceeding with this litigation (see Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). After her appointment by the Surrogate’s Court to act as the administrator of Dr. Collins’ estate, Ms. Val had the authority and power to, among other things, recover property belonging to Dr. Collins’ estate, prosecute an action to recover assets belonging to the estate, and settle claims for money owed to the estate (see e.g. 38 NY Jur 2d, Decedents’ Estates §§ 1442, 1513, 1521, 1532). It was not necessary that she be a member of the profession in which the professional corporation is authorized to practice, because Ms. Val was not acting in a professional capacity, i.e., as a director{**36 Misc 3d at 43} or officer of the professional corporation, but rather as an administrator, whose role is to preserve the value of, and prevent loss to, the estate.

The motion to restore was made within one year after the action had been “marked off” the trial calendar, and counsel’s supporting affirmation satisfactorily explained the reason that the action was “marked off” and showed a readiness to proceed to trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). Accordingly, the order is affirmed.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 29, 2011

APPEARANCES OF COUNSEL

Law Offices of Moira Doherty, P.C., Bethpage (Kevin R. Glynn of counsel), for appellant.

{**35 Misc 3d at 70} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion.

A provider is required to submit proof of claim to the insurer “in no event later than 45 days after the date services are rendered” unless the insurer has been provided with “clear and reasonable justification for the failure to comply with such time limitation” (Insurance Department Regulations [11 {**35 Misc 3d at 71}NYCRR] § 65-1.1). Plaintiff’s billing manager alleged that he had [*2]personally mailed a claim form (which billed for acupuncture services rendered from May 23, 2007 through May 31, 2007) on June 21, 2007. Defendant denied payment for the portion of this claim which billed for treatment on May 23, 2007 and May 24, 2007, based on plaintiff’s submission of the claim form beyond the 45-day period. Defendant’s claims examiner averred that the claim form had not been received by defendant until July 13, 2007 and annexed the envelope, bearing a July 10, 2007 postmark, which purportedly contained the claim form in question. As there is an issue of fact regarding the date that this claim form was mailed, defendant was not entitled to summary judgment dismissing the portion of the claim which billed for treatment on May 23, 2007 and May 24, 2007.

With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.

Defendant denied the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 based on an independent medical examination (IME) performed on August 13, 2007 by an acupuncturist who concluded that further acupuncture treatment was no longer necessary. In support of its cross motion, defendant submitted the sworn report of the acupuncturist, which established, prima facie, a lack of medical necessity for the services performed from August 29, 2007 through September 6, 2007. In opposition, plaintiff submitted the affidavit of its treating acupuncturist which did not rebut the conclusions set forth in the IME report (see Olga Bard Acupuncture, P.C. v GEICO Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51898[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]). Accordingly, so much of defendant’s cross motion as seeks to dismiss this portion of plaintiff’s claim should have been granted.{**35 Misc 3d at 72}

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 is granted.

Golia, J. (dissenting in part and concurring in part and voting to modify the order, insofar as appealed from, by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted and by providing that so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover for services rendered from May 31, 2007 through August 27, 2007 is vacated, [*3]and the matter is remitted to the Civil Court for a new determination of this branch of defendant’s cross motion, in the following memorandum). I must dissent from my colleagues in the majority as to their implicit finding that a court is under no obligation to take notice of the rates set forth in the workers’ compensation fee schedule. Indeed, the question here is one of judicial notice and the obligations of the court with respect thereto. While the majority does not specifically cite to the term, judicial notice is the issue. I previously filed a concurrence addressing the very same issue in Stanley Liebowitz, M.D. P.C. v American Tr. Ins. Co. (14 Misc 3d 142[A], 2007 NY Slip Op 50372[U] [App Term, 2d & 11th Jud Dists 2007]). While my concurrence in Stanley Liebowitz, M.D. P.C. specifically addressed the Civil Court’s grant of summary judgment to the medical provider, as opposed to the denial of summary judgment to the insurance provider, the issue of judicial notice of the no-fault fee schedule was similarly the underlying basis of that matter.

CPLR 4511 (a) states that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state” (emphasis added). As the fee schedule by which the rates of no-fault medical providers is determined is codified in the Official Compilation of Codes, Rules and Regulations of the State of New York, it falls under the purview of this mandate, and is consequently an obligation of this court.{**35 Misc 3d at 73}

The fee schedule utilized in New York State’s no-fault insurance scheme is the same schedule that was originally devised to set fees for medical services provided in conjunction with workers’ compensation claims. The workers’ compensation fee schedule was “incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a])” (LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]). Hence, the fee schedule, as it pertains to no-fault claims, is codified as part of the Official Compilation of Codes, Rules and Regulations of the State of New York as a component of Insurance Department Regulations (11 NYCRR) § 68.1 (a).

The New York Court of Appeals has specifically addressed judicial notice as it pertains to New York State regulations. In Matter of New York Assn. of Convenience Stores v Urbach (92 NY2d 204, 214 [1998]), the Court of Appeals found that the repeal of certain regulations by the New York State Tax Department was a development of which the Court “must take judicial notice.”

Both the Third and First Departments have held much the same. In Cruise v New York State Thruway Auth. (28 AD2d 1029, 1030 [1967]), the Appellate Division, Third Department, found that “the [trial] court was required [by CPLR 4511 (a)] to take judicial notice of” certain regulations of the New York State Thruway Authority. In Chanler v Manocherian (151 AD2d 432, 433 [1989]), the Appellate Division, First Department, held that, under CPLR 4511 (a), “[t]he refusal to take judicial notice of pertinent laws and regulations constitutes reversible error” (citing Howard Stores Corp. v Pope, 1 NY2d 110 [1956]).

The essential principle underlying these decisions is that a court has an inherent obligation to know the laws which it is charged with applying, much the same as a judge would charge a jury on the law at the close of evidence. Indeed, in discussing the role of judicial notice in the application of laws, the American Jurisprudence Proof of Facts states that “[t]he exercise of [*4]such power is so much taken for granted, that the specific term ‘judicial notice’ is not generally associated with it, though technically it could well be applied,” as “[a] court has inherent power to know the domestic law of its own jurisdiction, both statutory and case law” (60 Am Jur Proof of Facts 3d 175, § 3).

This long-entrenched reluctance of courts to take judicial notice of codified laws and regulations is illustrated in some aged opinions of appellate courts in our sister states: “[i]nferior {**35 Misc 3d at 74}courts are required to know the local regulations, municipal ordinances and town by-laws which it is their duty to administer” (Strain v Isaacs, 59 Ohio App 495, 514, 18 NE2d 816, 825 [1938]); “[t]he court is bound to take notice of the law” (Randall v Commonwealth of Virginia, 183 Va 182, 186, 31 SE2d 571, 572 [1944]). Both cases remain good law in their respective jurisdictions and continue to inform as to the proper role of judicial notice.

More recently, in Getty Petroleum Mktg., Inc. v Capital Term. Co. (391 F3d 312, 322 [2004]), Judge Lipez of the United States Court of Appeals for the First Circuit wrote in a concurring opinion:

“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not to the jury as evidence.”

In light of the above-discussed precedent and the tangential connection between the formal practice of judicial notice and the recognition of codified laws and regulations, I can see no reason why this court should not take notice, judicial or otherwise, of the fee schedule. The fee schedule has been made part of the law of New York (see LVOV Acupuncture, P.C., 2011 NY Slip Op 51721[U]).

An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.{**35 Misc 3d at 75}

Pesce, P.J., and Steinhardt, J., concur; Golia, J., dissents in part and concurs in part in a separate memorandum.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2011

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Law Office of Emilia Rutigliano, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**34 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a previously entered order, was whether the medical equipment supplied to plaintiff’s assignor was medically necessary. Prior to the commencement of the nonjury trial, plaintiff moved “to preclude defendant’s doctor based on an inability of defendant” to, in essence, establish the reliability of the medical records reviewed by defendant’s peer review doctor. The Civil Court ruled that defendant’s doctor would not be permitted to testify as to the contents of the medical records he had reviewed. Thus, the court opined, “the peer review doctor could not testify as to the medical basis for his opinion that the services [sic] were not medically necessary.” Accordingly, the Civil Court granted plaintiff’s motion for a directed verdict and entered judgment for plaintiff in the principal sum of $1,142.25.

Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various health care providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (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]; see also Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Finally, we further note that, to the extent the documents objected to by plaintiff were plaintiff provider’s own medical records, plaintiff could not, in any event, have objected to their admissibility on the ground that such records are not professionally reliable (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 11, 2011

APPEARANCES OF COUNSEL

Law Office of Michael S. Nightingale, Glen Cove (Bryan G. Melnick of counsel), for respondent. Gary Tsirelman, P.C., Brooklyn, for appellant.

{**34 Misc 3d at 22} OPINION OF THE COURT

Memorandum.

Ordered that the order is reversed, without costs, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that plaintiff was precluded from litigating its entitlement to first-party no-fault benefits since a prior claim by another provider involving plaintiff’s assignor arising out of the same accident, which claim had been denied by defendant based on a lack of coverage, had already been considered in an arbitration proceeding and had resulted in an award denying reimbursement of no-fault benefits to the claimant therein. Consequently, defendant argued, the complaint should be dismissed without prejudice to plaintiff’s pursuing the matter in arbitration. In the alternative, defendant contended that the action should be dismissed with prejudice on the ground that plaintiff’s assignor had not been involved in the motor vehicle accident in question. The Civil Court, citing Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), granted defendant’s motion to the extent of dismissing the complaint without prejudice to plaintiff’s pursuing reimbursement of no-fault benefits in an arbitration proceeding. This appeal by plaintiff ensued.

In Roggio, the Court of Appeals held that a claimant who elected to arbitrate disputed [*2]claims for first-party no-fault{**34 Misc 3d at 23} benefits waived the right to commence an action to litigate subsequent claims arising from the same accident (see also Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). However, a prior arbitration proceeding involving a different claimant provider does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even though the claims may arise from the same accident (see A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

“Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits . . . Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action” (id. at 23).

Since plaintiff was not involved in the prior arbitration proceeding, and since there was no showing of privity between plaintiff and the provider who was a party to that proceeding, plaintiff was not barred from commencing the instant action, and it was error for the Civil Court to dismiss the complaint without prejudice to plaintiff’s pursuing the matter in arbitration.

With respect to defendant’s alternative ground for dismissal, we find that defendant did not establish its prima facie entitlement to summary judgment based on its lack of coverage defense “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), as the proof offered in support of this branch of its motion seeking summary judgment was not in admissible form (see LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]). Consequently, defendant’s motion should have been denied in its entirety.

Accordingly, the order is reversed, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

Steinhardt, J. (dissenting and voting to affirm the order in the following memorandum). Although I am in full agreement{**34 Misc 3d at 24} with the majority that plaintiff is not limited as to the choice of forum (A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [2005]), I would affirm the order because I believe plaintiff’s case should be dismissed with prejudice. The dismissal by the arbitrator in the prior proceeding involving the assignor herein should be binding on this court. It was previously determined that Klever Guaman was not present in the motor vehicle at the time and place of the accident that allegedly caused his injuries. The police report submitted in support of defendant’s motion clearly indicates that the only people present in the respective vehicles were the drivers. In other words, Guaman’s claim of being in the passenger seat of the car being driven by Joffre Gonzalez is belied by the police officer’s observation at the scene. Were the police officer to testify, that portion of the report would be admissible. The arrest report, wherein Guaman admits that he was not involved in the accident for which a provider sought to recover no-fault benefits, is, in this [*3]writer’s opinion, an admission against interest and, therefore, admissible evidence that may be considered on a motion for summary judgment. I would dismiss plaintiff’s complaint on the theory that the assignor is a person not entitled to recover.

Pesce, P.J., and Rios, J., concur; Steinhardt, J., dissents in a separate memorandum.