City Court of Buffalo

21078

Daniel Morris, Esq,

Scott Mancuso, Esq.

E. Jeannette Ogden, J.

The Plaintiff medical provider, Daniel C. Cox, D.C., commenced this action to recover payment of first-party no-fault benefits for chiropractic services provided to its assignor, Valerie Lesniowski, [hereinafter referred to as the “insured”] for personal injuries that she sustained in an automobile accident. Defendant, who provided no fault insurance benefits to the insured, denied payment of benefits for said services on the grounds that they were not medically necessary, based upon the Independent Medical Examination Report of Dr. Melvin M. Brothman; an orthopedic surgeon.

The parties entered into a Stipulation which states that all but three (3) of the No Fault Claim forms referenced in the Plaintiff’s Complaint were timely and properly sent from the Plaintiff to the Defendant; that the Defendant has not issued payment to any person, including the Plaintiff, for any of the claims referenced in the Complaint which are now overdue; that the Defendant sent timely and proper No Fault Denial Claim forms for each and all of the claims referenced in the Complaint excluding Causes of Action No.1, 67 & 159 and that the Plaintiff received timely and proper No Fault Claim forms for each and all of the claims referenced in the Complaint, excluding causes of action #1, 67 & 159.

The parties further stipulated that there are two issues to be decided at trial. The first is whether the Plaintiff properly submitted bills for the chiropractic treatment alleged in Causes of Action #1,67 & 159 of the Complaint, totaling $216.88.

The second issue is whether the chiropractic treatment rendered to the insured totaling $7,868.83 was medically necessary.

A Non Jury Trial on the aforementioned two issues was had before the undersigned on May 19, [*2]2011. The parties stipulated that they would not call witnesses and the two issues would be decided entirely on documentary submissions and oral arguments. The parties stipulated into evidence the independent medical examination report of Dr. Brothman and written submissions outlining their respective positions, along with the legal authority relied upon in support thereof.

The Court listened to the oral arguments of counsel and reserved decision. Now, having fully considered the stipulations of Counsel, the evidence presented and the oral argument offered in support of the respective positions of the parties, and due deliberation having been had thereon, the Court hereby makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Plaintiff, Dr. Daniel C. Cox, is the Assignee of the insured [Valerie Lesniowski], who sustained personal injury in an automobile accident that occurred on February 10, 2003. At the time of the

accident, she was insured under a no fault insurance policy issued by the Defendant, Erie Insurance Company. Subsequent to the accident, she received chiropractic care and treatment from February, 2003 until August, 2005. It appears from the report of Dr. Brothman that the chiropractic treatment received during this period was based upon the Defendant’s receipt of a letter of medical necessity and payment for said treatment is not in dispute.

The insured received continued chiropractic care and treatment from Dr. Cox from August 31, 2005 until September 10, 2009. The no-fault benefits for payment of these services were properly assigned to Dr. Cox, who timely submitted claim forms to the Defendant in the amount of $7,868.83. The claim forms were timely received by the Defendant; payment thereof has not been made and is overdue.

The Plaintiff did not offer any evidence regarding the transmission of claims for the bills set forth in causes of action # 1, 67 and 159 of the Complaint. There was also no evidence regarding the payment or denial of payment of said bills. The stipulation of the parties expressly excluded the bills set forth in causes of action # 1, 67 and 159. The parties stipulated to Plaintiff’s prima facie case regarding the bills in the remaining causes of action in the Plaintiff’s complaint. The parties also stipulated to the Defendant’s timely denial of the claims on the grounds of lack of medical necessity.

An independent medical examination and evaluation of the insured was performed by Melvin M. Brothman, M.D., F.A.C.S., an Orthopedic Surgeon, at the request of the Defendant. Thereafter, Dr. Brothman prepared a written report dated August 16, 2005. In his report, Dr. Brothman notes the report of Dr. Cameron Huckell, an orthopedic spine surgeon, dated June 1, 2004, indicating that the insured was experiencing on going pain. He also notes reports from Dr. Marc Tetro, an orthopedic upper extremity surgeon, who performed arthroscopic surgery on the insured in December of 2004 and treats her every six months. [*3]

Dr. Brothman’s diagnosis of the insured states “status post arthroscopic surgery, right shoulder, for a labral tear, anterior impingement syndrome and persistent complaints; MRI evidence but no physical evidence of degenerative disc disease at L4-5 and 5-S1 of the lumbar spine.”

He concluded that there is a causal relationship between the motor vehicle accident and the insured’s complaints; that her current complaints are related to the motor vehicle accident and at the time of his examination, further treatment was required.

As far as chiropractic care for the insured was concerned, at that point in time, Dr. Brothman did not feel it would be of any value. “Further diagnostic testing was required.” As a result, Defendant denied payment of claims for the chiropractic services rendered by Dr. Cox from August 31,2005 through September 10, 2009 on the grounds that they were not medically necessary.

A medical report in letter form from Dr. Cameron Huckell to Dr. Murak, family physician of the insured, dated December 20, 2005 indicates that “continued chiropractic care twice per week seems reasonable given the fact that it reduces her pain.”

CONCLUSIONS OF LAW

To establish a prima facie case, the Plaintiff medical provider must submit proof of the transmission of its claim for no-fault benefits within 45 days and that the Defendant insurer received the claim but failed to pay or validly deny the claim within 30 days or failed to request verification. [Globe Surgical Supply v GEICO Ins. Co.,59 AD3d 129, 143, 871 N.Y.S.2d 263].

In order to be entitled to judgment, as a matter of law, a Plaintiff medical provider must submit evidentiary proof that the prescribed statutory billing forms were timely mailed to the insurer and received by the insurer, and that payment of the no-fault benefits was overdue. [Nyack Hospital, as Assignee of John Watson v Metropolitan Property & Casualty Insurance Company, 16 AD3d 564, 791 N.Y.S.2d 658].

As a result of the exclusion contained in the stipulation on this issue, coupled with the absence of any evidence regarding the Plaintiff’s transmission of claims for payment of the 3 bills contained in Causes of Action # 1, 67 and 159 of the Complaint, the Plaintiff has failed to sustain its burden of proof with respect to Defendant’s denial of payment for the aforementioned claims totaling $288.66. Accordingly, the 1st, 67th, and 159th Causes of Action in the Plaintiff’s Complaint are hereby DISMISSED.

The Plaintiff has made a prima facie showing of entitlement to judgment, as a matter of law, in the amount of $7,868.83 by virtue of the stipulation, subject to the Court’s finding on the issue of medical necessity.

A presumption of medical necessity attaches to a timely submitted no fault claim. Since the parties have stipulated to the Plaintiff’s prima facie case, the medical necessity for the [*4]chiropractic services is presumed. The burden then shifts to the Defendant to rebut this presumption of medical necessity. The Court finds that Defendant has failed to sustain this burden for the following reasons.

A denial of no-fault coverage premised on a lack of medical necessity must be supported by competent evidence, such as an independent medical examination or peer review, or other proof, which sets forth a factual basis and a medical rationale for denying the claim. [Healing Hands Chiropractic PC v. Nationwide Assurance Co., 5 Misc 3d 975, 787 N.Y.S.2d 645; A.B. Medical Services PLLC v. Peerless Insurance Co., 13 Misc 3d 25, 822 N.Y.S.2d 223].

In order to sustain this burden, the Defendant must establish both a factual basis and medical rationale for the conclusion of Dr. Brothman that the chiropractic services provided to the insured were not medically necessary. [Nir v Allstate Insurance, 7 Misc 3d 544, 546-547, 796 N.Y.S.2d 857].

In determining whether the services rendered by the chiropractor are medically necessary, the Court must determine the generally accepted standard of care in the field of chiropractics and whether the provision of said services was in accordance with those generally accepted chiropractic standards.

The Plaintiff contends that expert testimony is required to establish what the generally accepted medical/professional practices are and why the chiropractic services rendered were not necessary according to generally accepted medical/professional standards.

Plaintiff further contends that the Independent Medical Examination report that formed the basis of the denial of chiropractic services for the insured was written by a medical doctor and not by an expert in chiropractics; that chiropractics is separate and distinct from the practice of medicine and therefore a medical doctor’s standard of care is not controlling upon a chiropractor in the practice of his/her profession.

The Court rejects this argument. Although a chiropractor and orthopedic surgeon differ in techniques, they both deal with the human musculoskeletal system. Therefore, the generally accepted standard of care used by orthopedic surgeons may, as in this instance, be deemed controlling upon a chiropractor.

However, even though the Defendant’s expert, Dr. Brothman, is qualified to render an opinion on the issue of medical necessity, his report is insufficient to rebut the presumption of medical necessity. The report of Dr. Brothman is conclusory and lacks a factual basis for denial of the claim.

Dr. Brothman’s independent medical examination report merely stated that chiropractic treatment “would not be of any value” and “further diagnostic testing is required,” despite an MRI report, given by the Western New York MRI Center, identifying issues with the Plaintiff’s lumbar spine. [*5]Although Dr. Brothman physically examined the insured and provided an extensive report, he failed to support his conclusion with generally accepted medical/professional practice standards. Accordingly, the report fails to set forth an adequate medical rationale and is deficient to support a finding of lack of medical necessity.

In accordance herewith, judgment in favor of the Plaintiff is GRANTED in the amount of $7,868.83 with interest from the date of the commencement of the action, together with the costs, disbursements and statutory attorney’s fees associated herewith.

__________________________________

Hon. E. Jeannette Ogden, BCCJ

Dated: June 13, 2011

[*1]

City Court of Buffalo, January 21, 2009

APPEARANCES OF COUNSEL

Mura & Storm, PLLC, Buffalo (Brian C. Clark of counsel), for defendants. O’Brien Boyd, P.C., Williamsville (Daniel K. Morris of counsel), for plaintiffs. [*2]

{**23 Misc 3d at 629} OPINION OF THE COURT

Jeffrey F. Voelkl, J.

I. Background Facts

These seven actions have been combined for the purpose of deciding various motions to dismiss made by the defendants pursuant to CPLR 3211 (a) (8) which involve a common question of law. These actions are all for recovery of money damages. The plaintiffs are health care providers who provided medical care to their various patients. These patients were all insureds of the defendants who had their first-party no-fault claims denied. They then assigned their various claims to the plaintiffs. It should be noted that the defendants provide no-fault insurance coverage throughout New York State, including the City of Buffalo.

The plaintiffs commenced these actions by service of their summonses and complaints on the New York State Superintendent of Insurance at the Albany or New York City offices under the authority of Insurance Law § 1212.

It should be noted that both Albany and New York City are hundreds of miles from the City of Buffalo and separated from Erie County, where the City of Buffalo is located, by dozens of counties.

The question presented to the court is: Does service of a summons and complaint on the Superintendent of Insurance, pursuant to Insurance Law § 1212, in the Albany or New York City offices, allow for the City Court of Buffalo to acquire personal jurisdiction over the defendants based on the limiting language of New York Constitution, article VI, § 1 (c), which states in part that “[t]he legislature may provide that processes, warrants and other mandates . . . of town, village and city courts outside the city of New York may be served and executed in any part of the county in which such courts are located or in any part of any adjoining county” (emphasis added)?

II. Findings of the Court

The court finds that it has subject matter jurisdiction over this matter pursuant to Uniform City Court Act §§ 201, 202 and {**23 Misc 3d at 630}212. The defendants are well-known automobile insurance carriers who have been transacting business in New York State and the City of Buffalo for decades. They have both been plaintiffs in this court for dozens, if not hundreds, of actions. Additionally, all of the plaintiffs maintain and regularly transact business in their offices within the City of Buffalo or in townships adjacent to the City of Buffalo which allows this court to obtain subject matter jurisdiction over these actions pursuant to Uniform City Court Act § 213.

However, the defendants point out that simply having subject matter jurisdiction over the action is not enough in and of itself to confer personal jurisdiction over the parties if they cannot be served in accordance with the restrictions imposed by article VI (§ 1 [c]) of the New York Constitution. (Hyman & Gilbert v Greenstein, 138 AD2d 678, 680 [2d Dept 1988].) [*3]

The defendants point to a decision written by Judge James McLeod of this court in Marita Car Rentals, Inc. v Ishtiaq (11 Misc 3d 506 [Buffalo City Ct 2006]), which held that physical service of process of this court under Vehicle and Traffic Law § 253 on the Secretary of State in his New York City office, or in any office located in a county other than Erie where the City of Buffalo is located, or any of the counties contiguous to Erie County was a clear violation of the constitutional limits of article VI (§ 1 [c]) of the New York Constitution.

However, the court finds the facts of these cases distinguishable from Marita and much more in line with the facts in Pohlers v Exeter Mfg. Co. (293 NY 274 [1944]). In Pohlers the Court of Appeals held that service of process under former General Corporation Law § 217 on the New York State Secretary of State in Albany was valid service on a corporate defendant in a New York City action.

First, the defendant in Pohlers was a foreign corporation which had expressly consented to service beyond the court’s jurisdictional limitations as a condition for doing business in New York State. In Marita there was no such express consent, but only an implied consent based on the legal premise that drivers from other states know that the laws of New York State require that all drivers in the state consent to the New York State Secretary of State to act as their agent for accepting service of process pursuant to Vehicle and Traffic Law § 253. Here, the facts of these cases are much more in line with those in Pohlers than to those in Marita.

Second, in the Pohlers case the statute required that the cause of action must have occurred within the territorial limits of the{**23 Misc 3d at 631} city and that the defendant had a place of business within the territorial boundaries of New York City, which it did. In Marita, one defendant entered into a rental car agreement in a township that was contiguous to the City of Buffalo and the other defendant using the same rental car was involved in a motor vehicle accident in another township which was also contiguous to the City of Buffalo. These were the only actions alleged which would have provided the court with subject matter jurisdiction. Again, the facts of these cases are much more in line with those in Pohlers than to those in Marita.

Additionally, Uniform City Court Act §§ 403 and 404 allow for the court to exercise personal jurisdiction over any nonresident of the county who transacts business within the city as authorized in the Uniform City Court Act or as may be authorized elsewhere by law.

Here, the defendants are both foreign corporations which are licensed to do business in New York State by the New York State Insurance Department. As an expressed condition of doing business in New York State both companies agreed to allow service upon the Superintendent of Insurance to confer personal jurisdiction upon them by a court of competent jurisdiction pursuant to Insurance Law § 1212.

Based on the facts of these cases the court finds that Buffalo City Court is a court of competent jurisdiction for the purposes of Insurance Law § 1212.

This court finds that service on the defendants pursuant to Insurance Law § 1212 is valid service and gives this court personal jurisdiction over the defendants pursuant to the authority of Uniform City Court Act §§ 403 and 404 and the Court of Appeals holding in[*4]Pohlers v Exeter Mfg. Co. (293 NY 274 [1944]).

It should be noted that the court has found no case law which suggests that the Pohlers decision is no longer good law, and Pohlers has in fact been cited by appellate courts well after the 1962 change to the New York Constitution cited by the defendants. (Acciaierie E. Ferriere Lombarde Falck S.p.A. v Pete Sublett & Co., 78 AD2d 834 [1st Dept 1980].)

In fact, our own Fourth Department has stated in a decision specifically citing to the Pohlers decision that a party may by agreement consent to the jurisdiction of a court which would not otherwise have authority over him. Further, public policy does not forbid the appointment of an agent to accept service,{**23 Misc 3d at 632} or an agreement, in advance of litigation, to submit oneself to jurisdiction by subjecting oneself to process. While ordinarily a court can acquire jurisdiction of the person of a defendant only by service of process within the jurisdiction of the court, that rule does not apply where the defendant has agreed in advance to accept some other form of service as sufficient. (Matter of Bauer [Motor Veh. Acc. Indem. Corp.], 31 AD2d 239, 241 [4th Dept 1969].)

It is hereby ordered that the defendants’ motions to dismiss the plaintiffs’ complaints are denied in their entirety.

City Court of Buffalo

CC-15483

David W. Polak, Esq.

Attorney for Claimants

1220 Liberty Building

424 Main Street

Buffalo, New York 14202

Phyliss A. Hafner, Esq.

Attorney for Defendant

3332 Walden Avenue, Suite 100A

Depew, New York 14043

Henry J. Nowak, J.

Background & Jurisdiction

This matter began as a commercial claim before a hearing officer in the small claims part of this court, pursuant to local rule. The first hearing date was adjourned at the consent of both parties, apparently so that defendant Progressive Casualty Insurance Company [hereinafter “Progressive”] could bring a formal written motion for summary judgment. At the next date, Progressive attempted [*2]to argue its formal written motion but was prevented from doing so by the hearing officer. Because both parties were represented by counsel and motion practice is generally discouraged in small claims court, the hearing officer questioned whether the matter should be transferred out of small claims to a regular part of the court pursuant to 22 NYCRR 210.41-a (d). As a result, the hearing officer sent the matter to a judge in the special term part who agreed to hear the matter as a judge sitting in the small claims part.

Claimant Proscan Radiology of Buffalo [hereinafter “Proscan Radiology”] was the original claimant. At oral argument, in response to defendant’s motion to dismiss for lack of standing, counsel for Proscan Radiology moved to amend the caption by adding Proscan Imaging, Buffalo [hereinafter “Proscan Imaging”] and Dr. Gurmeet Dhillon, as additional claimants bringing the same claim. Over defendant’s objection, this court granted the motion to amend, pursuant to UCCA §1804-A (“the court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading and/or evidence”).

The claim is based on the assignment of first party no-fault benefits from an insured of Progressive’s to claimants, who provided medical services (3 MRI scans) to the insured. Progressive denied payment of the claim based on a peer review report claiming that the MRI tests were premature and not medically necessary at the time that they were performed, and that the fees requested were in excess of the fee schedule.

In addition to those defenses, Progressive also asserts that Proscan Radiology has no standing to sue because it is not the assignee named in the original no-fault assignment. Progressive also moves to dismiss the newly added claim by Dr. Dhillon for the same reason. Progressive moves to dismiss the claim by Proscan Imaging (who it claimed to be the named assignee) because it is not licensed to practice medicine in New York and therefore cannot be eligible for reimbursement pursuant to 11 NYCRR 65-3.16, as interpreted by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005).

Both parties are seeking summary judgment at this time. While pre-trial motion practice is generally discouraged in small claims court (Weiner v Tel Aviv, 141 Misc 2d 339 [1988]), it is allowed by 22 NYCRR 210.41-a (l). This court agreed to hear this motion because it appears that this issue will recur repeatedly in small claims proceedings unless the court makes and publishes a ruling.

In making this decision, the court is mindful of the of the goals and intentions of the legislature in enacting the commercial small claims parts in city courts; namely, to provide commercial entities and small businessmen, who have relatively simple and small monetary claims, with a forum that is convenient, simple and quick. The court is also aware of the primary purpose underlying the no fault law; namely, to assure prompt payment of first-party benefits without regard to fault and without expense to those making claims as a result of motor vehicle accidents. To implement this legislative aim of curtailing delay and reducing expense in the adjustment of such claims, the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays (Dermatossian v New York City Transit Authority, 67 NY2d 219, 225 [1986]).

Under both the Uniform City Court Act and the No-Fault Law, the claimants here are entitled to have their claim decided quickly and inexpensively. Therefore this court will not transfer these [*3]matters to a regular part of the court (despite the fact that both sides are represented by counsel), absent a compelling reason to do so; which is not present in this case.

While UCCA 1804-A provides that the hearing of this matter will not be bound by the statutory provisions or rules of practice and procedure, 22 NYCRR 210.41-a (l) calls for no such relaxation during motion practice. Furthermore, because both sides are represented by counsel who are engaged in formal motion practice, this court will require that their submissions comply with the normal rules associated with formal motion practice (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Miller v County of Nassau, 2003 WL 22462114, 2003 NY Slip Op 51307 [2003]; Buell v Dolan, 2003 WL 22462177, 2003 NY Slip Op 51328 [2003]; Nuckle v Huyck, 2002 WL 484315, 2002 Slip Op 40041 [2002], Spiegel v Continental Airlines, 11 Misc 3d 145 [A] [2006]; Jackson v Deer Park Ventures, 9 Misc 3d 1123 [A] [2005]). This court is not bound in the making of this decision by the holdings of any arbitrators (Hobby v CNA Insurance, 267 AD2d 1084 [4th Dept 1999]).

Decision on the Merits

A.Claimants’ Prima Facie Case

A claimant is not required to submit a physician’s affidavit to establish medical necessity as part of its prima facie case, since medical necessity is established in the first instance by proof of submission of the claim form (All County Open MRI v Travelers Insurance, 11 Misc 3d 131 [a] [2006]). To recover first-party no-fault benefits for medical services provided to its assignor, a claimant establishes a prima facie entitlement to summary judgment by proof that it submitted a valid assignment of benefits, a claim setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Mary Immaculate Hospital v Allstate, 5 AD3d 742, 742-743 [2d Dept 2004]).

Courts have declined to distinguish a proper proof of claim under the insurance regulations from the quantum of proof necessary to prevail on a motion for summary judgment in an ensuing action on the claim. Once the claimant has established a prima facie case, the burden shifts to the defendant to come forward with admissible evidence refuting the claimant’s evidence and demonstrating the existence of a material issue of fact (King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 770 [2004]; Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

In support of its motion, Progressive submitted the following documents:

1) a New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form (NYS FORM NF-AOB) listing “ProScan” as the assignee, and Proscan Imaging as the provider of the services;

2) a copy of the Health Insurance claim form, (Form CMS-1500) dated 12/16/04, submitted by the Claimants seeking payment for 3 MRIs: code No.72141 (cervical spine); $1,100.00, code #72146 (thoracic spine); $1,20.00 and code #72148 (lumbar spine); $1,100.00, which listed Dr. Dhillon as the physician/supplier of the services, Proscan Radiology as the facility where the services were rendered and Proscan Imaging as the physician/supplier’s billing name; and

3) NF-10 Denial of Claim Form, listing Dr. Dhillon and Proscan Imaging as assignees, the amount of the claims as $3,400.00, the date of treatment as 12/07/04, [*4]date of bill as 12/16/05, date bill received by insurer as 1/3/05. The denial was based on fees not in accordance to fee schedules and lack of medical necessity based on a peer review. The denial was dated 3/18/05 and signed by Daniel R. Mack as adjuster and representative of insurer.

While the CMS-1500 form is not the statutorily required NF-3 claim form, it has been deemed its functional equivalent (Rockaway Boulevard Medical v Progressive, 9 Misc 3d 52 [2005]).

In this case, the NF-10 denial form, which is admissible as an admission by Progressive, is sufficient to establish prima facie entitlement to summary judgment by claimants Dr. Dhillon and Proscan Imaging , i.e. that the assignment and claim were transmitted, that defendant received them, and that defendant failed to pay or deny the claim within 30 days of receipt [King’s Medical Supply v Country-Wide Insurance, 5 Misc 3d 767, 770 [2004]).

B.Defendant’s Medical Necessity Defense

While Progressive did submit copies of verification requests dated 1/14/05, as well as an affidavit of Georgia Pape stating that she was the adjuster on this claim, it failed to submit proof in evidentiary form (such as an affidavit of mailing) that the follow up verifications were in fact ever sent in order for the denial to be timely (Nyack Hospital v Metropolitan Property & Casualty, 16 AD3d 564 [2d Dept 2005]).

Here, the denial of claim was dated March 18, 2005, well beyond the 30 days to pay or deny the claim. Progressive’s assertion that it timely denied the claim lacks merit because the record does not contain an affidavit from a person with personal knowledge stating either that the March 18, 2005 denial of claim form was mailed, or setting forth a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (A.B. Medical Services v Utica Mutual, 11 Misc 3d 71, 72 [2006]). The proof submitted amounts to unsubstantiated hearsay

(Boai Zhong Yi Acupuncture v New York Central Mutual, 8 Misc 3d 1011[A] [2005]).

Mr. Pape claims to have personal knowledge of requests for verification and that the denial was timely, but provides not proof of the same; especially as to how he knows when, if ever, that Daniel R. Mack, the adjuster named on the Denial of Claim Form, mailed the documents in question (see Hospital for Joint Diseases v Nationwide Mutual Ins, 284 AD2d 374, 375 [2d Dept 2001]; Careplus Medical Supply v Travelers, 7 Misc 3d 133 [A] [2005]).

Here, the defendant has failed to offer proof in admissible form that it sought verification of the claim, or that it timely denied the claim (Summit Psychological v General Assurance, 9 Misc 3d 8, 9-10 [2005]; Delta Diagnostic v Geico, 10 Misc 3d 145 [A] [2006]). An insurer who fails to pay or deny the claim, or seek verification of the particulars of the claim-within the applicable time periods, is thereafter precluded from raising any defenses to the claim, other than lack of coverage or fraud (Metropolitan Radiological v State Farm, 7 Misc 3d 675 677 [2005]; King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 771 [2004]; Presbyterian Hospital v Maryland Casualty Co., 90 NY2d 274 [1997]).

Therefore, Progressive is barred from denying the claims by Dr. Dhillon and Proscan Imaging based on lack of medical necessity (King’s Medical Supply v Country-Wide Ins, 5 Misc 3d 767, 771 [2004]).

However, even if Progressive could proceed on the lack of medical necessity defense, it [*5]would fail because the peer review report that it relied upon, and the subsequent affidavit provided by the chiropractor, did not provide an appropriate rationale for lack of medical necessity or explain how the MRI tests could be medically unnecessary when they did in fact yield positive findings (Nir v Allstate, 7 Misc 3d 544, 548 [2005]).

While the MRI results were provided by way of a sur-reply affidavit, such affidavits can be considered by the court where, as here, Progressive had an opportunity to reply to that submission and took advantage of that opportunity by offering further submissions of its own (Hoffman v Kessler, 28 AD3d 718 [2d Dept 2006]; Hayden v County of Nassau, 16 AD3d 415 [2d Dept 2005]),

Such scant factual basis and medical rationale will not sustain defendant’s burden of proof. Nir v Allstate, 7 Misc 3d 544, 548 [2005]). This court will not second guess a doctor who decides that a medical test is necessary for his diagnosis and treatment when the only support for the denial is a peer review performed by a doctor who did not examine the patient; especially in light of positive findings (Alliance Medical Office PC v Allstate, 196 Misc 2d 268, 270 [2003]; Nir v Allstate, 7 Misc 3d 544, 548 [2005]). Putting weight on the treating physician’s prescription serves the reasonable expectations of the insured. An insured expects coverage for treatment recommended by a physician because he trusts that the physician has recommended a reasonable treatment consistent with good medical practice; the insured’s expectations can best be fulfilled by construing the policy liberally, so that uncertainties about the reasonableness of treatment will be resolved in favor of coverage (Oceanside Medical Healthcare v Progressive, 2002 WL 1013008, 2002 Slip Op 50188 [U] [2002]).

C.The Defense that Claimants Lacked Standing

Next, Progressive has alleged that Proscan Radiology and Dr. Dhillon cannot seek payment under the assignment because they were not listed as the assignee of the benefits in this matter.

If Progressive had any concerns about who the proper claimant was or who held the valid assignment of the benefits it had to raise that objection in its original denial of claim (which it did not do) or it would be deemed waived (Rockaway Boulevard Medical v Progressive, 9 Misc 3d 52 [2005]). Since Dr. Dhillon and Proscan Imaging were listed on the initial claim form, and Progressive did not question the validity of the request for reimbursement based on the assignment in its denial, it is precluded from raising that issue now as a defense (Summit Psychological PC v General Assur Co, 9 Misc 3d 8, 11 [2005]).

Progressive is correct, however, that Proscan Radiology has never put forth any proof that it has ever submitted any claim in this matter. Therefore, its claim is dismissed.

D. The Defense that Claimant is Not Licensed to Practice Medicine

Progressive is also correct that a business entity that is not licensed to practice medicine in New York cannot be eligible for reimbursement pursuant to 11 NYCRR 65-3.16(a)(12), as interpreted by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005). Additionally, such a defense is not waived by failing to state it in the original denial of claim (AB Medical Services v Utica Mutual, 11 Misc 3d 71, 72 [2006]; SK Medical Services, 11 Misc 3d 1086 [A] [2006]; Metroscan Imaging v Geico, 8 Misc 3d 829, 834-835 [2005]).

In support of its claim that Proscan Imaging is not entitled to payment on this claim because it is not licensed to practice medicine in New York State, and therefore in violation of 11 NYCRR 65-3.16(a)(12), Progressive attached uncertified copies of search results from (1) the New York State Department of State, Division of Corporations, Entity Information website, which can be found [*6]at http://appsext5.dos.state.ny.us/corp_public/corpsearch.entity_search_entry, and (2) the New York State, Education Department, Office of the Professions, On-Line Business Entities Verification website; which can be found at http://www.op.nysed.gov/opsearches.htm,

This court will take judicial notice of the records kept and maintained by the State of New York and other states on their official government websites and will accept that information as an exception to the hearsay rule under CPLR Rule 4518(a), the business records exception and State Technology Law § 306 (see Miriam Osborn Memorial Home Assc v City of Rye, 9 Misc 3d 1019 [2005]; Citibank NA v Martin, 11 Misc 3d 219 [2005]; Cali v East Coast Aviation, 178 FSupp2d 276, 287 [EDNY 2001]).

Here, since Progressive has met their initial burden in showing that Proscan Imaging is not licensed to practice medicine in New York State, a prerequisite to perform and seek reimbursement for diagnostic services under the no-fault law under 11 NYCRR 65-3.16(a)(12), and Proscan Imaging having offered no proof in response on the issue, this court must dismiss its claim.

To be clear, this is not the type of matter that was decided by the Court of Appeals in State Farm v Mallela, 4 NY3d 313 (2005). There is no allegation of fraud. This is more of the nature of a “technical” violation described by the court in Mallela, but the importance of licensed professionals performing these tests is not lost on the court.

It should be noted that (1) the New York State Department of State, Division of Corporations’ Entity Information website; (2) the State of Ohio’s Secretary of State, Corporate Database Search (http://www.sos.state.oh.us/); and (3) the New York State, Education Department, Office of the Professions’ On-Line Business Entities Verification website all show that all of the principals in Proscan Radiology and Proscan Imaging, including Dr. Dhillon, are licensed to practice medicine in New York State.

Under this type of fact pattern, fairness would seem to dictate that Proscan Imaging simply be allowed 60 days to apply, pay the required fees and be issued a license in order for it to maintain its claim, much like unauthorized foreign corporations seeking to maintain an action in New York once their corporate status is discovered in the middle of litigation (McIntosh v Ball, 247 AD2d 103, 105-106 [3d Dept 1998]). However, that type of remedy need not be addressed in this case since Dr. Dhillon has met his burden for summary judgment in this matter.

E.Defendant’s Claim of Nonconformity with the Worker’s Compensation Fee Schedules

Finally, Progressive has alleged that the fees requested for the services performed are beyond those allowed by statute. Normally, the charges for such services are limited by the fee schedules established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determine that usual procedures or unique circumstances justify the excess charge (Insurance Law § 5108 [a]).

The court will also take judicial notice that according to the controlling Official New York State Workers’ Compensation Medical Fees Schedule, effective October 1, 2003; the allowable fees for the date of service in the 14221 zip code were: # 72141 (cervical spine): $707.11; code # 72146 (thoracic spine): $771.31; and code #72148 (lumbar spine): $733.04; which are lower than the amounts being claimed here.

However, having failed to establish a timely denial of the claim, Progressive is precluded from raising its defense of nonconformity with the Worker’s Compensation fee schedules (Ultra Diagnostics v Liberty Mutual, 9 Misc 3d 97, 98 [2005], Rigid Medical of Flatbush v New York [*7]Central, 11 Misc 3d 139 [A] [2006]).

Pursuant to rule, since the fees sought are beyond the applicable fee schedule, and no unique circumstances have been claimed, Dr. Dhillon is not entitled to attorneys fees on his claim (11 NYCRR 65-4.6 [i]; Matter of the Medical Society of New York v Superintendent of Ins, 100 NY2d 854, 871 [2003]).

Conclusion

Therefore, it is hereby ordered that Dr. Dhillon is entitled to recovery of unpaid no-fault benefits for services he provided to the Progressive’s insured, and his motion for summary judgment is granted in the sum of $3,400.00, with statutory interest from February 2, 2005. Interest shall be calculated by the clerk of the court at the statutory rate of 2% per month; plus normal small claims costs and disbursements, if any. It is further ordered that Progressive’s motion for summary judgment is granted as to Proscan Imaging and Proscan Radiology.

This decision constitutes the order of this Court.

Hon. Henry J. Nowak

Buffalo City Court Judge

Dated:June 27, 2006