[*1]

Civil Court of the City of New York, Richmond County, April 3, 2009

APPEARANCES OF COUNSEL

Phillips, Krantz & Levi, Brooklyn, for plaintiff. Law Offices of Teresa M. Spina, Woodbury, for defendant.

{**24 Misc 3d at 543} OPINION OF THE COURT

Katherine A. Levine, J.

This case presents the novel issue of whether an insurance company must notify prospective medical service providers that it will not reimburse them for any services they may provide to an assignor after a determination has been made, pursuant to an independent medical examination (IME) performed on the assignor, that further medical services are not medically necessary. As will be set forth below, since the notice requirements for verification requests, as contained in 11 NYCRR 65-3.5 and 65-3.6, do not apply to IMEs that are noticed and performed prior to the insurance company’s receipt of claim forms (preclaim IMEs), such notification is not necessary.

Plaintiff Bayside Rehab & Physical Therapy, P.C. (plaintiff or Bayside or assignee), a medical service provider, brings this action pursuant to Insurance Law § 5106 (a) seeking to recover $814.19 and $1,131.47 for services it provided to its assignors Aleisha Allen and Angela Allen (collectively referred to as the Allens or assignors), for injuries they sustained in an automobile accident. Bayside moves for summary judgment based upon a claimed prima facie showing that its bills were properly submitted and that the defendant GEICO Insurance Company (defendant or GEICO) failed to pay or deny the claims within 30 days.

Defendant claims that plaintiff is not entitled to summary judgment because it failed to provide adequate proof that its claims were generated or mailed within the regular course of business. In the alternative, defendant argues that plaintiff failed to submit several claims within the statutorily prescribed period of 45 days as prescribed by 11 NYCRR 65-1.1. In its reply papers, plaintiff contends that since the defendant did not notify it about the IME cutoff, it was “not fair” and “not proper” for defendant to issue a denial of claims based upon the IME cutoff. Defendant responded, during oral argument, that because it informed the assignors that no more benefits would be paid as a result of the IME, the assignors were under an obligation to inform any future medical providers of this determination of lack of medical necessity. In light of the [*2]above, defendant contends that the matter should proceed to trial.

The Allens were involved in an automobile accident on June 17, 2006. Pursuant to a request by defendant, the assignors{**24 Misc 3d at 544} underwent IMEs by three different doctors on November 2, 2006. The three doctors determined that no further orthopedic, chiropractic, acupuncture or other types of medical services were medically necessary for the injuries suffered by either Allen related to the accident. Defendant GEICO thereupon terminated all benefits for the various types of medical treatment indicated in the IME reports, effective November 9, 2006. Absent from defendant’s papers is any indication as to how or if defendant notified the assignors of the termination of benefits much less notification of the IME cutoff to plaintiff.

Plaintiff subsequently provided medical services to both assignors in the spring of 2007 and submitted two bills on behalf of Aleisha on May 17, 2007 and June 12, 2007, respectively and three bills on behalf of Angela on May 17, June 6 and June 19, 2007, respectively. Defendant denied the May 17, 2007 bills based on plaintiff’s noncompliance with the 45-day rule and denied all the bills based on lack of medical necessity pursuant to the IME cutoff date of November 9, 2006.

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented.” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 314 [2004, Smith, J., concurring]; Zuckerman v City of New York, 49 NY2d 557 [1980]; see Manhattan Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1144[A], 2008 NY Slip Op 51844[U] [Civ Ct, Richmond County 2008].) A plaintiff establishes a prima facie entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing forms ha[ve] been mailed and received, and that payment of no-fault benefits [i]s overdue.” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2d Dept 2004]; Second Med., P.C. v Auto One Ins. Co., 20 Misc 3d 291, 293 [Civ Ct, Kings County 2008].)

To lay a proper evidentiary foundation on a summary judgment motion that the tendered records were produced within the regular course of a medical provider’s business, plaintiff must provide a supporting affidavit by an individual who possesses personal knowledge of the office practices. (Complete Orthopedic Supplies, Inc. v State Farm Ins. Co., 16 Misc 3d 996, 999 [Civ Ct, Queens County 2007], citing CPLR 4518 [a]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d Dept 2006]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 45 [App Term, 2d Dept 2006].) Plaintiff meets this burden by{**24 Misc 3d at 545} providing an affidavit of its business manager who exhaustively details the record-keeping procedures of the business that created the records and clearly details the dates of the services, the amounts due, and her personal knowledge of the billing practices. (Manhattan Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., supra, citing Second Med., P.C. v Auto One Ins. Co., 20 Misc 3d at 294-295.) In addition, the billing manager personally packaged, sealed, applied postage to and mailed the bills. As such, plaintiff has made a prima facie showing of entitlement. [*3]

Defendant contends that plaintiff failed to submit several bills within the statutorily required period of 45 days as prescribed by 11 NYCRR 65-1.1. Pursuant to Insurance Law § 5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. All automobile insurance policies issued or renewed after April 5, 2002 are required to include a revised mandatory personal injury protection endorsement which provides that claims for medical treatment must be submitted within 45 days after services are rendered. (11 NYCRR 65-1.1 [b]; 65-2.4 [c]; Rockman v Clarendon Natl. Ins. Co., 21 Misc 3d 1118[A], 2008 NY Slip Op 52093[U], *4 n 2 [Civ Ct, Richmond County 2008], citing Matter of Medical Socy. of State of N.Y. v Serio, 298 AD2d 255 [1st Dept 2002]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 2d Dept 2008].) Where one proof of claim is submitted for several medical treatments, the 45-day period commences the day after the first treatment is rendered. (SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52, 55 [App Term, 2d Dept 2006], citing Ops Gen Counsel NY Ins Dept No. 03-06-30 [June 2003].)

Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered, an insurer is precluded from asserting the defense of a provider’s untimely submission of claim if it does not issue a timely denial of claim. (Rockman v Clarendon Natl. Ins. Co., supra, citing Mid Atl. Med., P.C. v Travelers Indem. Co., 12 Misc 3d 147[A], 2006 NY Slip Op 51579[U] [App Term, 1st Dept 2006].) Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies the proof of claim. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997], citing Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3].){**24 Misc 3d at 546}

Here, plaintiff submitted claims on May 17, 2007 for services provided on March 9, 12, 16, 20 and 28, 2007, which is more than 45 days after each service was provided. Furthermore, since defendant timely denied these claims on May 30, 2007, within 30 days of their receipt, defendant is entitled to assert its defense that the claims were untimely submitted.

As to plaintiff’s contention that the denial based upon the IME cutoff was somehow unfair or defective since defendant assignee never notified plaintiff about the IME cutoff based on lack of medical necessity, an analysis of precedent on what if any notification requirements attach to preclaim IMEs is in order. This issue was recently addressed by this court in Prime Psychological Servs., P.C. v Nationwide Prop. & Cas. Ins. Co. (24 Misc 3d 230, 2009 NY Slip Op 29100 [2009]) wherein the court found that the notice requirements for verification requests, as contained in 11 NYCRR 65-3.5 and 65-3.6, do not apply to examinations under oath (EUOs) that are noticed prior to the insurance company’s receipt of claim forms (preclaim EUOs). The same reasoning applies to preclaim IMEs.

The insurance regulations provide for IMEs and EUOs as part of an insurer’s “entitlement to ‘additional verification’ following the insurer’s receipt of a provider’s statutory claim forms.” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 19 [App Term, 2d [*4]Dept 2004], affd in part 35 AD3d 720 [2d Dept 2006]; see 11 NYCRR 65-1.1 [d]; 65-3.5 [d]; see also All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008]; Lumbermens Mut. Cas. Co. v Inwood Hill Med., P.C., 8 Misc 3d 1014[A], 2005 NY Slip Op 51101[U] [Sup Ct, NY County 2005]; Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U] [Civ Ct, NY County 2004].) Where an EUO or IME is requested as additional verification after receipt of the claim, the insurer must schedule the IME within the same time frame as medical examinations—within 30 days from the date of receipt of the prescribed verification form (11 NYCRR 65-3.5 [d])—and must schedule an EUO within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept 2008].)

11 NYCRR 65-3.6 (b) provides that if the requested postclaim verification

“has not been supplied to the insurer 30 calendar days after the original request, the insurer shall,{**24 Misc 3d at 547} within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call . . . or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (Emphasis added.)

“A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1]).

In addressing whether these requirements applied to preclaim EUO requests, this court looked to Stephen Fogel Psychological (supra), where the Appellate Term found that an insurer had the right to conduct an IME prior to its receipt of the statutory claim form or its statutory equivalent which “under the regulations, triggers the verification process.” (7 Misc 3d at 20-21.) The Stephen Fogel Psychological court then found that the right to an IME “at this juncture is not afforded by the verification procedures and timetables” because section 65-1.1 (d) “is not, on its face or contextually, a ‘verification’ provision, and because the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form.” (Id. at 21.) The only party that needed to be notified of the preclaim IME was the assignor-injured party. (Stephen Fogel Psychological, 35 AD3d at 721.) In All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (20 Misc 3d 554 [2008]), Judge Sweeney extended this reasoning to EUOs, finding that an insurance company acted within its rights under the endorsement by scheduling an EUO before it had received the claim.

Based upon the above, this court, in Prime Psychological Servs. (supra), found that the postclaim notice requirements did not apply to preclaim EUOs, or by analogy to the instant matter, to preclaim IMEs, and that it therefore was of no consequence that neither the insurer’s Special Investigation Unit investigator nor its claims representative mentioned whether the EUO notices were sent to the assignor’s attorney. As such, this court determined that an insurer’s timely denial of a claim, [*5]based upon an insured’s failure to appear for a preclaim EUO, which constitutes a breach of a condition precedent to payment, is a valid ground upon which to award summary judgment to the defendant.{**24 Misc 3d at 548}

The same analysis governs what, if any, notice requirements attach to IME cutoff determinations based upon a lack of medical necessity. Where such a determination is made prior to the submission of a claim, there is no statutory requirement as to whom the insurer has to notify. Even the postverification notice requirements, which are inapplicable to preclaim EUOs and IMEs, do not mandate that the assignee medical provider be notified.^[FN*] 11 NYCRR 65-3.5 (e) discusses where EUOs and IMEs are to be held and then sets forth that “[t]he insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed.” The term “applicant” within the context of 11 NYCRR 65-3.5 (e) specifically refers to the injured party (the assignor). (East Acupuncture, P.C. v Allstate Ins. Co.,61 AD3d 202, 2009 NY Slip Op 01191 [2d Dept 2009].) 11 NYCRR 65-3.6, entitled “Follow-up requirements,” which was ruled upon in Prime Psychological Servs. (supra), refers to the eligible injured person as the applicant in subdivision (a) where it mandates that insurers mail a second application for motor vehicle no-fault benefits to the “eligible injured person.”

Second, from a purely logical vantage point, it would be an exercise in futility to require an insurance company to send a preclaim IME cutoff notice to the assignee since, by definition, an insurance company cannot prophesize which medical service entity, out of the hundreds which exist in the metropolitan area, an injured party might seek services from. Statutory construction must be sought which is “consistent with achieving [the statute’s] purpose and with justice and common sense.” (Freeman v Kiamesha Concord, 76 Misc 2d 915, 920 [Civ Ct, NY County 1974].) The courts are to adopt a construction of a statute “which will not cause objectionable results, or cause inconvenience . . . or absurdity.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 141, at 281; Matter of Medical Socy. of State of N.Y. v State of N.Y. Dept. of Health, 83 NY2d 447, 451-452 [1994].) The common mandate of statutory construction is to assume that the Legislature “did not intend a patently absurd result.” (Covington v Walker, 307 AD2d 908, 909 [2d Dept 2003,{**24 Misc 3d at 549} Feuerstein, J., dissenting]; see Statutes § 145; see In re Adamo, 619 F2d 216, 219 [2d Cir 1980].)

Here, the IME was conducted and the IME cutoff date became effective approximately six months before the Allens even sought treatment from, much less assigned their benefits to, plaintiff. Hence, it would be absurd to require defendant to notify this particular plaintiff provider about the IME cutoff as it had no way of discerning that the Allens might seek [*6]treatment at this provider at some date in the future. Plaintiff implicitly concedes that the Allens were notified of the IME cutoff date by contending that the “IME cut-off was never advised to assignee” and that the “IME exam was kept secret from the assignee” until the denial (reply ¶ 10). Since the Allens attended the IMEs and apparently knew that their no-fault benefits were cut off, they were under an obligation to inform plaintiff and any other medical provider from whom they sought treatment of this cutoff.

In light of the above, and the timely denials submitted by defendants, plaintiff’s motion for summary judgment is denied and this case will proceed to trial.

Footnotes

Footnote *: Parenthetically, in the one apparent case that discusses this issue, the court held that either the medical service provider or the assignor must be notified about the IME cutoff. (Mollins v GEICO, 15 Misc 3d 1103[A], 2007 NY Slip Op 50467[U] [Civ Ct, NY County 2007].) This case, however, provides little guidance since the IME and subsequent cutoff date occurred at or about the same time that the services were rendered at the medical service provider.

[*1]

Civil Court of the City of New York, Kings County, March 31, 2009

APPEARANCES OF COUNSEL

Sylvain R. Jakabovics, Brooklyn, for plaintiff. Freiberg & Peck, LLP, New York City, for defendant.

{**24 Misc 3d at 521} OPINION OF THE COURT

Peter P. Sweeney, J.

{**24 Misc 3d at 522}In this action to recover assigned first-party no-fault benefits, both plaintiff and defendant moved for summary judgment. In opposition to plaintiff’s motion and in support of its cross motion, defendant argued, inter alia, that the action is premature and should be dismissed because plaintiff did not provide the medical reports which it had requested as additional verification of the claims. The novel question presented is whether plaintiff, in response to defendant’s requests for additional verification of the claims, was obligated to do more than just inform defendant that it was not in possession of the medical reports that had been requested.

Factual Background

The facts are essentially undisputed. Plaintiff D & R Medical Supply is a provider of medical equipment. Plaintiff submitted admissible proof in support of its motion for summary [*2]judgment demonstrating that it had submitted to the defendant two claims for assigned first-party no-fault benefits for medical equipment that it had provided to its assignor. The claims were submitted on July 9, 2007 and July 25, 2007.

By letter dated July 23, 2007, defendant acknowledged receipt of the first claim. In the letter defendant stated as follows: “[a] report from the referring physician is required with comment regarding the medical necessity of the medical equipment.”

Plaintiff responded to defendant’s letter by its own letter, dated July 26, 2007, stating:

“We are in receipt of your letter dated July 23rd, 2007. Unfortunately D & R Medical Supply, Inc. is unable to provide you with referring physician report and/or any medical records that you are requesting for the above named patient. This type of documentation is not in our possession. We are medical supply company and provide supplies in accordance to the doctor’s prescription. Please request it directly from the medical provider.”

Defendant mailed a second copy of its July 23, 2007 letter to the plaintiff on August 24, 2007.

By letter dated August 11, 2007, defendant acknowledged receipt of the second claim and again stated that “[a] report from the referring physician is required with comment regarding the medical necessity of the medical equipment.” Plaintiff again informed defendant that it did not have such a report in its possession. On September 13, 2007, defendant mailed a second copy of its August 11, 2007 letter to the plaintiff.{**24 Misc 3d at 523}

To date, plaintiff has not provided the defendant with a report from any physician attesting to the medical necessity of the equipment at issue; for its part, defendant neither paid nor denied the claims at issue.

On its motion for summary judgment, plaintiff’s position is that it submitted its bills to the defendant who neither paid nor denied the claims pursuant to the No-Fault Law and regulations. In defense, and on its own cross motion, it is defendant’s position that the action on these claims is premature and must be dismissed. According to the defendant, the 30-day period within which it had to pay or deny the claims had not begun to run, inasmuch as plaintiff has yet to provide defendant with the reports of the referring physicians that had been timely requested as additional verification for each of the claims.

Analysis

Plaintiff established its prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary [*3]Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). The court notes that the affidavit submitted by plaintiff’s billing manager demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d Dept 2006]). The burden thus shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant failed to meet this burden.

There is no merit to defendant’s argument that the statutory time period within which it had to pay or deny the claim was tolled due to plaintiff’s failure to provide it with the materials it had requested as additional verification of the claims. Assuming that the letters sent to plaintiff by defendant constituted valid initial and follow-up demands for additional verification of the claims, plaintiff unequivocally advised defendant that it was not in possession of the medical reports that defendant was seeking. Certainly, there is no evidence before the court suggesting that these materials were ever in plaintiff’s care, custody or control.

Even under the liberal discovery provisions embodied in article 31 of the CPLR, a party to a lawsuit is required to produce only those items “which are in the possession, custody or control of the party” (CPLR 3120 [1] [i]; see generally Saferstein{**24 Misc 3d at 524} v Stark, 171 AD2d 856 [2d Dept 1991]; Corriel v Volkswagen of Am., 127 AD2d 729, 730 [2d Dept 1987]; Lear v New York Helicopter Corp., 190 AD2d 7, 11 [2d Dept 1993]). While the no-fault regulations provide that an “insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]), this should not be construed as requiring a provider to provide materials over which it has no control. A contrary construction would violate the core objective of the No-Fault Law: “to assure claimants of expeditious compensation for their injuries through prompt payment of first-party benefits without regard to fault and without expense to them” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]) and would frustrate one of the main purposes of the regulatory scheme, which is “to provide a tightly timed process of claim, disputation and payment” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]; see also New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2d Dept 2004]). Imposing upon a medical provider the obligation to provide an insurer with materials that are not in its care, custody or control would also be illogical.

Finally, it is worth noting that defendant had a means of obtaining the materials it was seeking as additional verification of the claims. The no-fault regulations, particularly 11 NYCRR 65-3.5 (c), entitle an insurer to receive items necessary to verify a claim directly from persons others than applicants for no-fault benefits (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept 2007]). In Doshi Diagnostic Imaging Servs., the appellate court held that the insurer acted within its rights when it sought medical necessity verification from the prescribing physician rather than from the plaintiff MRI provider and that the insurer’s request for verification to the prescribing physician tolled the statutory claim determination period (id. at 43-44). Pursuant to the holding in Doshi Diagnostic Imaging Servs., defendant could have requested the medical reports from the [*4]referring physicians, whom plaintiff had identified in the claim forms. Indeed, the court in Doshi Diagnostic Imaging Servs. suggested that the no-fault regulations would also allow an insurer to seek verification of a claim directly from the referring physician where the plaintiff applicant was a medical equipment provider who merely fills prescriptions, as is the case here (id. at 44).{**24 Misc 3d at 525}

The court has considered defendant’s remaining arguments in opposition to plaintiff’s motion and in support of its cross motion and finds them to be without merit.

Accordingly, it is hereby ordered that plaintiff’s motion for summary judgment is granted and plaintiff may enter judgment against the defendant in the amount of $2,448.13, together with interest and attorneys fees as provided for under the No-Fault Law, plus costs; and it is further ordered that defendant’s cross motion for summary judgment is denied.

Civil Court of the City of New York, Kings County

116467/04

Genine D. Edwards, J.

Plaintiff commenced this action to recover no-fault benefits from the defendant, for acupuncture services performed by its licensed acupuncturist to its assignor, Alan Yensi. A bench trial ensued.

At the outset, the parties stipulated that the plaintiff proved its prima facie case and the defendant timely denied the claims. In addition, the bills and denials were admitted into evidence. Plaintiff rested. At that point the burden of production shifted to the defendant to prove the basis of its denial. Before defendant called its witness, it made a motion to dismiss, based upon Great Wall Acupuncture v. Geico Gen. Ins. Co., 16 Misc 3d 23, 842 N.Y.S.2d 131 (App. Term, 2d Dept. 2007); Ava Acupuncture, P.C. v. Geico Gen. Ins. Co., 17 Misc 3d 41, 844 N.Y.S.2d 570 (App. Term, 2d Dept. 2007), contending that an insurer is entitled to remit payment at the chiropractic rate indicated in the Workers’ Compensation Fee Schedule. The plaintiff argued in opposition that the defendant was required to reveal its procedures for choosing the rate and the calculation of the amount. This Court reserved its decision.

The defendant’s claim representative testified that the Workers’ Compensation Fee Schedule is the tool used to pay healthcare providers. Since that schedule does not address licensed acupuncturists, the defendant compared the educational and licensing requirements and found that the chiropractic requirements are closest to the licensed acupuncturist. Therefore, the plaintiff was paid at the chiropractic rate. On cross-examination the claim representative testified that he was not the representative who denied the plaintiff’s claims, but indicated that the representative processed and issued the claims in accord with defendant’s policies and procedures, including using the Workers’ Compensation Fee Schedule.

After due deliberation of the credible evidence submitted, this Court finds that the defendant shouldered its burden of producing a proper grounds for denying full payment of the no-fault benefits based upon the Workers’ Compensation Fee Schedule. Great Wall Acupuncture, 16 Misc 3d at 23; Ava Acupuncture, P.C., 17 Misc 3d at 41; Ops Gen. Counsel NY Ins. Dept. 10-06-04. The plaintiff did not rebut this defense.

[*2]Accordingly, judgment in favor of the defendant and the complaint dismissed.

This constitutes the decision and order of this Court.

Dated: March 6, 2009

________________________

Genine D. Edwards

Judge of the Civil Court

[*1]

Civil Court of the City of New York, Richmond County, March 5, 2009

APPEARANCES OF COUNSEL

Epstein McDonald & McCarthy, New York City, for defendant. Baker Sanders Barshay Grossman Fass Muhlstock & Neuwirth, Mineola, for plaintiff.

{**24 Misc 3d at 230} OPINION OF THE COURT

Katherine A. Levine, J.

{**24 Misc 3d at 231}This case presents the novel issue of whether the notice requirements for verification requests, as contained in 11 NYCRR 65-3.5 and 65-3.6, apply to examinations under oath (EUO) that are noticed prior to the insurance company’s receipt of claim forms (preclaim EUO). As will be set forth below, this court decides this issue in the negative.

Plaintiff Prime Psychological, a medical services provider, brought this action seeking reimbursement in the amount of $1,341.14 for medical services it provided to assignor Andrea Ortiz stemming from her automobile accident. Defendant Nationwide Property and Casualty Ins. Co. seeks an order granting it summary judgment based upon Ortiz’s failure to appear for an EUO. Plaintiff opposes the motion and argues that defendant’s notice for an EUO was defective and accordingly failed to toll the statutory 30-day period in which defendant must deny the claim, hence rendering the denial untimely.

Plaintiff treated Ortiz in its medical facility on three occasions from November to December 2006, and on December 14, 2006 mailed Nationwide the consolidated bill, which the defendant received on December 18, 2006. Prior to its receipt of the bill, Nationwide scheduled Ortiz for two EUOs, pursuant to the provision in its insurance policy, both of which Ortiz failed to attend. Defendant submitted an affidavit from an investigator of the Special Investigation Unit (SIU) who had personal knowledge of the mailing practices and procedures surrounding EUO scheduling letters and stated that the EUO letters sent to Ortiz were made in the regular course of Nationwide’s business. The SIU investigator stated that he had personal knowledge that defendant mailed Ortiz three letters scheduling EUOs.^[FN*] The first letter was sent to Ortiz via certified mail [*2]on November 30, 2006, advising that her presence was required on December 15, 2006. On December 14, 2006, a voice mail was received from Ortiz’s attorney stating that Ortiz would not be present at the EUO. The next day, the defendant’s investigator spoke with an individual from the office of Ortiz’s attorney and advised him that since his voice mail was received after hours, it would not be counted as an attempt to adjourn. Accordingly, Ortiz’s failure to attend the EUO was counted as a no-show. Nationwide sent another letter to Ortiz on December 15, 2006, scheduling her EUO for January 3, 2007. Ortiz’s attorney called the defendant’s office{**24 Misc 3d at 232} on January 2 and requested an adjournment. Nationwide thus, by letter dated January 2, 2007, scheduled a final adjournment for January 11, 2007, which Ortiz failed to attend. Thus, only the last EUO was scheduled after Nationwide had received the bill.

On January 18, 2007, Nationwide denied the claim on the grounds that plaintiff’s claim was not billed in accordance with the fee schedule and that Ortiz’s failure to attend an EUO constituted a breach of the insurance policy condition that the eligible injured person may reasonably be required to submit to EUOs, which precluded coverage. Nationwide retroactively terminated Ortiz’s coverage, effective October 16, 2006.

To grant a motion for summary judgment it must clearly appear that no material and triable issue of fact is presented. (Manhattan Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1144[A], 2008 NY Slip Op 51844[U] [2008].) In support of its motion for summary judgment, defendant is required to establish, prima facie, that (1) its insurance policy in effect when the EUOs were sought contained an endorsement authorizing such verification; (2) the EUO scheduling letters were timely mailed; (3) the date and place of EUO were not unreasonable; and (4) assignor failed to appear for the scheduled EUO. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2d Dept 2006]; Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [2d Dept 2008].)

Here, plaintiff argues that defendant failed to satisfy the second prong of its prima facie case since it did not notify Ortiz’s attorney about the “follow-up EUO.” While the SIU investigator’s affidavit is silent about any mailings to the applicant’s attorney, the EUO notifications that were sent to Ortiz were cc:ed to her attorney. The issue thus presented is whether the language requiring that an applicant’s attorney be notified of a follow-up verification request applies to a preclaim EUO.

As a condition to coverage under the revised mandatory personal injury protection endorsement, “the eligible injured person . . . shall . . . as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same” (11 NYCRR 65-1.1 [d] [Sec I, Conditions, Proof of Claim (b)]). Another condition to coverage under this section sets forth that an eligible person “shall submit to medical examination by physicians selected by, or acceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require.” (11 NYCRR 65-1.1 [d] [Sec I, Conditions, Proof of Claim].){**24 Misc 3d at 233}

11 NYCRR 65-3.5 details the verification procedures to be followed after the insurer receives the completed application for no-fault benefits (NYS form N-F 2). The injured party or that party’s assignee medical services provider must then submit written proof of claim (claim form—usually verification of treatment by attending physician or other health care [*3]provider—NYS form N-F 3) to the insurer within 45 days after the date the medical services are rendered. Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889-890 [2d Dept 2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997].)

However, an insurer may toll the 30-day period by properly requesting verification within 15 days from the receipt of the proof of claim form or bill (Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723, 724 [Civ Ct, Queens County 2004], citing 11 NYCRR former 65.15 [d] [1]). The insurance regulations provide for an independent medical examination (IME) (and EUOs) as part of an insurer’s “entitlement to ‘additional verification’ ” following receipt of a provider’s statutory claim forms. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 19 [App Term, 2d Dept 2004], affd in part 35 AD3d 720 [2006]; see 11 NYCRR 65-1.1 [d]; 65-3.5 [d]; see also All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008]; Lumbermens Mut. Cas. Co. v Inwood Hill Med., P.C., 8 Misc 3d 1014[A], 2005 NY Slip Op 51101[U] [Sup Ct, NY County 2005]; Inwood Hill Med. P.C. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 NY Slip Op 50565[U] [Civ Ct, NY County 2004].) Where an EUO or IME is requested as additional verification after receipt of the claim, the insurer must schedule the IME within the same time frame as medical examinations—within 30 days from the date of receipt of the prescribed verification form (11 NYCRR 65-3.5 [d])—and must schedule an EUO within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept 2008].)

“[If the] requested verification[ ] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar{**24 Misc 3d at 234} days, follow up with the party from whom the verification was requested, either by telephone call . . . or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 [b] [emphasis added].)

“A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1]).

In the instant matter, it is clear that the defendant made two requests in writing to the insured for an EUO prior to its receipt of the statutory claim form from plaintiff on December 18, 2006, and that it adjourned the EUO scheduled on December 15th until January 3rd at the request of the assignor’s attorney on January 2, 2007. Therefore both the initial and follow-up scheduling letters preceded defendant’s receipt of the claim.

In Stephen Fogel Psychological (7 Misc 3d 18 [2004]), the Appellate Term found that an insurer had the right to conduct an IME prior to its receipt of the statutory claim form or its [*4]statutory equivalent which, “under the regulations, triggers the verification process.” (Id. at 20.) The insurance regulations first mention the right of an insurer to request an IME (and EUO) in the mandatory personal injury protection endorsement, “which is independent of the verification protocols,” and, in light of the broad language authorizing IMEs, the court found there “to be no reason to preclude an insurer from requesting an IME prior to its receipt of the statutory claim form” (id. at 20). The reviewing court stated that such an interpretation furthers “the policies underlying no-fault insurance, including . . . the expeditious processing of claims” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

The Appellate Term then found that the right to an IME “at this juncture is not afforded by the verification procedures and timetables” because 11 NYCRR 65-1.1 (d) “is not, on its face or contextually, a ‘verification’ provision, and because the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form.” (7 Misc 3d at 21.) In All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (20 Misc 3d 554 [Civ Ct, Kings County{**24 Misc 3d at 235} 2008]), Judge Sweeney extended this reasoning to EUOs, finding that an insurance company acted within its rights under the endorsement by scheduling an EUO before it had received the claim.

In light of the above, and since defendant’s right to conduct an EUO of the assignor, at this juncture, is not afforded by the verification procedures and timetables, it is clear that the language governing the verification procedures and, hence, postclaim EUOs—that the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed (11 NYCRR 65-3.6 [b])—is inapplicable to this preclaim EUO. As such, the fact that neither the SIU investigator nor the claims representative mentioned whether the EUO notices were sent to the assignor’s attorney is of no consequence.

Having determined that defendant properly requested an EUO before it received a claim, and that it was not required to send the EUO requests to the attorney, the court must decide whether an insurer’s timely denial of a claim, based upon an insured’s failure to appear for a preclaim EUO, which constitutes a breach of a condition precedent to payment, is a valid ground upon which to award summary judgment to the defendant.

In Stephen Fogel Psychological (35 AD3d 720 [2006]), the Second Department disagreed with the second portion of the Appellate Term decision which had distinguished the contractual remedies available to an insurer based upon whether the IME no-show was preclaim or postclaim. In the case of postclaim IME no-shows, the insurer could rely upon the remedy available upon nonreceipt of requested verification—the 30-day period in which to pay or deny a claim does not begin to run and any claim for payment by the provider is deemed to be premature. (7 Misc 3d at 20, citing New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; see All-Boro v Progressive, 20 Misc 3d at 556-557.) However, this was inapplicable to preclaim IME no-shows, which must be governed by “general principles of no-fault” law; i.e., that a failure to attend a preclaim IME would defeat the presumption of medical necessity that inures to a medical provider’s properly submitted claim and hence would defeat a provider’s motion for a summary judgment (7 Misc 3d at 21-22). [*5]

The Second Department disagreed with this portion of the ruling, declaring that there was no distinction between the contractual remedies an insurance company could invoke{**24 Misc 3d at 236} depending upon whether the failure to appear for an IME occurred before or after the submission of the claim form. Since the appearance of an insured at IMEs (and EUOs) was a condition precedent to the insurer’s liability on the policy, an insurer could retroactively deny a claim to the date of loss for a claimant’s failure to attend IMEs. (See also All-Boro v Progressive, 20 Misc 3d at 556 [where Judge Sweeney opined that a failure to appear for a preclaim EUO was a “valid ground for denying the claim ‘retroactively to the date of loss’ “].) However, once an insurer received a claim, it was “required to adhere to the statutory and regulatory scheme for the processing of no-fault claims” and it therefore had to pay or deny the claim within 30 days of its receipt. (Id.)

Here, the defendant established the standard office practices and procedures used to ensure that the verification requests and the denial were properly addressed and mailed, and presented an affidavit from an SIU investigator who had personal knowledge of both the mailings and the EUO no-show. Defendant has established that it timely denied the claim and summary judgment is granted to defendant.

Footnotes

Footnote *: Defendant also submitted an affidavit from a claims representative who personally denied the claims and had personal knowledge of the office’s business procedures concerning the mailing of denials.

Civil Court of the City of New York, Kings County

131695/07

Plaintiff:

Sylvain R. Jakabovics, Esq.

2630 Ocean Avenue, Suite A-3

Brooklyn, NY 11229

Defendant:

Law Offices of Moira A. Doherty

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11553

Genine D. Edwards, J.

In this action, plaintiff seeks to recover no-fault benefits from the defendant. Plaintiff now moves for summary judgment and defendant cross-moves for the same relief.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. St. Claire v. Empire Gen. Contr. & Painting Corp., 33 AD3d 611, 821 NYS2d 471 (2d Dept. 2006). See also Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 (1986). The motion shall be supported by an affidavit from a person with knowledge of the facts. See CPLR 3212 (b). If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers. See De Santis v. Romeo, 177 AD2d 616, 576 NYS2d 323 (2d Dept. 1991). Once the movant provides sufficient proof the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact. See Katona v. Low, 226 AD2d 433, 641 NYS2d 62 (2d Dept. 1996).

Plaintiff established a prima facie case as to the creation and mailing of the subject bill, in the amount of $1,104.00. Defendant, however, persuasively contends that plaintiff’s lawsuit is premature since the plaintiff failed to comply with outstanding verification requests. Defendant properly proved timely service of its initial verification request for an invoice, CPT codes and medical records. In response, plaintiff provided an invoice, but failed to provide proper CPT codes and medical records. Defendant sent a second and third verification request, acknowledging receipt of plaintiff’s invoice, but indicating that the proper coding and medical records were still [*2]outstanding. There was no further response from the plaintiff. Although plaintiff’s affiant indicated that it was his duty to handle verification requests and responses, he never asserted that he or anyone else did so in this matter.

This Court finds that the burden rests with the plaintiff to properly verify its claim. Plaintiff cannot simply rest on its laurels and ignore a verification request. See Lenox Hill Radiology and MIA P.C. v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 (Civ. Ct. New York County 2008). Defendant did all it could do by sending two follow-up requests. Since the plaintiff desires to be paid, the onus is on it to ensure that the defendant has all of the required information to verify and pay the claim. Plaintiff completely ignored its burden and commenced this action prematurely.

Furthermore, it should be noted that, whether the plaintiff possesses the verification requested or it is in the hands of the referring physician, plaintiff cannot shift its obligation to verify a claim to the defendant.

Accordingly, the complaint is dismissed.

This constitutes the decision and order of this Court.

Dated: February 26, 2009

____________________________

Genine D. Edwards

J.C.C.

Civil Court of the City of New York, Richmond County

42103/04

Katherine A. Levine, J.

This case raises again the issue of what type of evidence a defendant insurance company must present, in support of its claim that a medical service provider is fraudulently incorporated, to warrant an order from the court directing extensive discovery or EBT’s. .

Plaintiff Lenox Neuropsychiatry Medical (“Lenox” or “plaintiff”) commenced this action against defendant pursuant to Insurance Law § 5106 (a) to recover $ 3,888.79 in unpaid bills for acupuncture services rendered to its assignor Leon Murray (“Murray”). The defendant, State Farm Insurance Co., (“State Farm” or “defendant”) alleges that plaintiff is fraudulently incorporated in violation of 11 NYCRR § 65.3.16(a)(12) and moves to dismiss plaintiff’s complaint, with prejudice, for plaintiff’s failure to provide complete and meaningful responses to defendant’s discovery demands. In the alternative, defendant moves to compel plaintiff to fully comply with plaintiff’s discovery demands and to produce plaintiff’s purported owner, Dr. Azim Etemadi (“Etemadi”) for an EBT, pursuant to CPLR §3124. In support of its motion, defendant presents an affirmation from its attorney chronicling the web of fraud allegedly surrounding plaintiff and a number of other medical providers as well as an affidavit from one Dr. Ahmed Halima (“Halima”), a doctor who has worked for a number of medical providers, that purportedly implicates Etemadi in this fraudulent scheme.

Plaintiff opposes the motion, stating that defendant is not entitled to extensive discovery or to take an EBT since it has failed to provide any coherent evidence to support its allegation that plaintiff is fraudulently incorporated. Accordingly, plaintiff moves this court for a protective order pursuant to CPLR §3103(a).Plaintiff also alleges that the defendant’s motion is defective since it failed to annex a denial of claim to its motion.

Article 31 of the CPLR governs discovery actions and its disclosure provisions do not [*2]condition discovery upon a showing of “good cause.”The guiding principle behind Article 31 of the CPLR is that there should be “full disclosure of all matter material and necessary in the prosecution and defense of an action” (CPLR §3101 (a)). The words “material and necessary” are to be interpreted liberally and the test is “one of usefulness and reason” to assist in the preparation for trial by sharpening the issues. Cambridge Medical v. Nationwide Prop. & Cas. Ins. Co., 19 Misc 3d 1110A, 859 NYS2d 901(Civil Ct., Richmond Co. 2008), citing Carothers v. Insurance Companies et al, 13 Misc 3d 970, 973 (Civil Ct., Richmond Co. 2006). Although the bar against which to measure whether the defendant has shown that its discovery requests are warranted on the issue of fraudulent incorporation is quite low, Bay Plaza Chiropractic v. State Farm Mutual Automobile Ins. Co., 2008 NY Slip Op 51925U, 21 Misc 3d 1102A (Civil Ct., Richmond Co.2008), citing Carothers, supra , unsupported conclusions and “suspicions” as well as “unsubstantiated hypotheses and suppositions” are nevertheless insufficient to raise a triable issue of fact pertaining to the assignor’s alleged fraud. A.B. Medical Services PLLC v Eagle Ins. Co., 3 Misc 3d 8, 10 (App. Term, 2d Dept. 2003).

Insurers have the burden to come forward with proof in admissible form to establish the factual basis of their allegations. Mt. Sinai Hospital v Triboro Coach Inc., 263 AD2d 11, 20 (2d Dept 1999). In fact, in Mallela, the Court of Appeals specifically permitted insurers to “look beyond the face of licensing documents to identify willful and material failure to abide by state and local law,” State Farm Mutual Automobile Insurance Co., Appellant, v. Mallela et al., 4 NY3d 313, 321 [3d Dept 2005], in assessing whether to withhold reimbursement of no-fault claims to medical corporations they believe to be fraudulently incorporated. Id., see, One Beacon Ins. Co. v. Midland Medical Care, 54 AD3d 738, (2d Dept 2008).

In Bay Plaza v. State Farm, this court addressed the issue of what constitutes a sufficient showing for purposes of allowing defendant additional discovery into plaintiff’s matters to determine if it is fraudulently incorporated. There, the defendant submitted an affidavit from its Special Investigations Unit (“SIU”) investigator with personal knowledge of the investigation as well as other documentation which included clearly marked insurance claim forms evidencing duplicative claims and even of more importance, affirmation from defendant’s attorney, explaining the logical connection between the plaintiff and fraud. Accordingly, this court found that defendant has articulated a “founded belief” that plaintiff is actually controlled by a non-licensed professional and made allegations sufficient to raise an issue of fact as to whether plaintiff was fraudulently incorporated.

In contrast, here, the defendant has submitted unsubstantiated hypotheses and suppositions and has not articulated a founded belief that Lenox is fraudulently incorporated so as to warrant the extensive discovery it is seeking. Defendant attempts to question whether Dr. Etemadi is the true owner of Lenox by weaving an intricate pattern of alleged fraud premised upon the fact that defendant received bills from Dr. Etemadi for services he allegedly rendered while working at different medical providers. Since Lenox, as well as the other medical [*3]providers from whom Dr. Etemadi submitted. bills use the same billing companies, and since two of these billing companies have the same address and phone numbers,” a hallmark of improperly owned PCs” is present (affirmation of Joseph A. Schwarzenberg , Esq, “attorney’s affirmation, ¶¶ 7-9 ). Defendant then asserts that Dr. Etemadi also renders services for another entity, “Livingston Medical,” which along with its purported owner have been implicated in “doc in the box activity” (attorney affirmation, ¶13, 14) because the U.S. Attorney indicted an attorney who was associated with Livingston and other medical clinics, with “participating in a conspiracy to commit health care and insurance fraud related to automobile accidents “(attorney affirmation, ¶¶ 13-16). However, even this assertion does not implicate Livingston per se much less Lenox or Dr. Etemadi.

Finally, defendant refers to an affidavit of Dr. Halima that has no caption or index number, and is dated 2006, which laboriously details clinics which are purportedly owned and controlled by individuals who are not doctors. It is salient to note that Dr. Halima never implicates Lenox is this scheme and only refers to once to a Dr. Atamedi, which defendant’s attorney argues in reality is Etemadi. Defendant also attempts to implicate Etemadi because one medical facility he worked for lists a service of process contact name that sounds similar to a name of individual Halima claims is implicated in fraud.

The court finds this alleged web of fraud to be beyond the six degrees of separation that could conceivably connect these various medical providers to one another ^[FN1].The court first takes issue with defendant’s claim that Dr. Etemadi is synonymous with the Dr. Atamedi mentioned in Halima’s affidavit. Furthermore, the court can give little credence to Dr. Halima’s affidavit since it apparently was borrowed from some unknown and unrelated case and does not even mention Lenox Neuropsychiatry! Second, while defendant has made a valiant attempt to implicate Lenox and Neuropsychiatry with numerous billing companies and one other medical provider which somehow may be implicated in a fraudulent scheme by virtue of the acts of an attorney, there simply is no direct or indirect connection between Lenox or Etemadi and actual or attempted fraud.

Given the above, this court does not find defendant has articulated a “founded belief” that plaintiff is actually controlled by a non-licensed professional so as to warrant a broad based trial on fraud or to warrant extensive discovery on fraudulent incorporation. In fact, defendant’s attempts to link plaintiff to fraudulent incorporation are too convoluted as to even provide guidance as to what reasonable discovery would be warranted. However, although not specifically articulated by defendant, this court is curious as to why Dr. Etemadi would render services for a number of medical clinics if he is in fact the owner of Lenox, which would [*4]theoretically require him to devote his time and energy to overseeing the operation of Lenox. As such, this court finds that it is material and necessary for defendant to conduct a limited EBT of Etemadi to ascertain the extent of his work with clinics separate and apart of Lenox, whether any of these clinics have actually been found by a court to have been fraudulently incorporated, and the extent of his knowledge as to the actual operations of these other clinics.

In light of the above, the motion is denied except for the limited EBT that will be allowed of Dr. Etemadi. The court directs defendant to notice Etemadi for an EBT within the next twenty days of receipt of this decision and that the EBT be conducted within the next 45 days.

The foregoing constitutes the decision and order of the court.

Dated:January 29, 2009

Staten Island, NYHON. KATHERINE A. LEVINE

Judge, Civil Court

ASN by ________ on ____________.

___

Footnotes

Footnote 1:Six degrees of separation is the theory that anyone on the planet can be connected to each other through a chain of acquaintances that has no more than five intermediaries. The theory was first proposed in 1929 by the Hungarian writer Frigyes Karinthy in a short story called “Chains”.

[*1]

Civil Court of the City of New York, Richmond County, December 31, 2008

APPEARANCES OF COUNSEL

Emilia I. Rutigliano, Brooklyn, for plaintiff. James F. Sullivan, New York City, for defendant.

{**23 Misc 3d at 240} OPINION OF THE COURT

Katherine A. Levine, J.

{**23 Misc 3d at 241}Plaintiff, Yklik Medical Supply, Inc., a medical supply provider, brings this action pursuant to Insurance Law § 5106 (a) to recover $317 in unpaid bills for medical equipment it provided to its assignor Tammy Agosto, with statutory interest and attorney fees. Yklik moves for summary judgment based upon a claimed prima facie showing that its bills were properly submitted and that the defendant Allstate Insurance Company failed to pay or deny the claim within 30 days. Plaintiff also asserts that defendant’s denial was untimely.

Defendant Allstate Insurance Company opposes the motion, asserting that plaintiff has failed to establish a prima facie case since the affidavit of plaintiff’s billing manager is not based on his personal knowledge of the plaintiff’s office practices and billing procedures. Of greater import, Allstate contends that since plaintiff’s claims were in excess of the fee schedule contained in the Workers’ Compensation Law, and since defendant made a partial payment to plaintiff, a triable issue of fact exists as to whether defendant paid the appropriate amount for medical services, hence mandating a denial of summary judgment.

A medical provider must limit its charges to those permitted by approved fee schedules (Insurance Law § 5108 [a]; 11 NYCRR 68.0 [f]) “which protects a patient from erosion of available benefits by inflated charges.” (Complete Orthopedic Supplies, Inc. v State Farm Ins. Co., 16 Misc 3d 996, 1005 n 13 [Civ Ct, Queens County 2007], citing Ops Gen Counsel NY Ins Dept No. 04-06-11 [June 2004].) The fees for services and procedures are governed by the workers’ compensation fee schedule (11 NYCRR 68.1) and durable medical goods fees are governed by the New York Medicaid fee schedule (11 NYCRR Appendix 17-C part F) (collectively referred to as fee schedule).

Ordinarily, a fee schedule dispute raises a triable issue of fact, hence defeating a plaintiff’s motion for summary judgment. (Complete Orthopedic Supplies at 1005.) However, plaintiff contends that defendant is barred from even raising the defense that the bills exceeded the fee schedule or partial payment of the claim because defendant failed to submit a timely denial. In its papers in opposition, defendant summarily asserts that it issued a timely denial. However, during oral argument, defendant asserted that since it paid the bills in accordance with the fee schedule, and since plaintiff is not entitled to be compensated in excess of the fee schedule, that it need not file a timely denial or any denial.

It is clear that plaintiff has established its prima facie case. The affidavit of plaintiff’s billing manager exhaustively details{**23 Misc 3d at 242} the record keeping procedures of the business, and clearly sets forth the procedures for the creation and retention of bills, of which he has personal knowledge. (See Manhattan Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1144[A], 2008 NY Slip Op 51844[U], *1 [Civ Ct, Richmond County 2008], citing Second Med., P.C. v Auto One Ins. Co., 20 Misc 3d 291, 294-295 [Civ Ct, Kings County 2008].) The affidavit further details that the bills at issue were made and kept in the ordinary course of business at the time the services were rendered and sets forth the precise mailing procedure that was followed. Moreover, the billing manager personally packaged, sealed, applied postage to and mailed the bill and supplies.

The burden then shifts to the defendant in a no-fault case to show a triable issue of fact. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) To defeat an award of summary judgment to plaintiff, defendant must provide proof, in evidentiary form, that it either paid or denied the claim within 30 days of receipt or that it asserts a nonprecludable defense. (Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139[A], 2008 NY Slip Op 51065[U] [Nassau Dist Ct 2008]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial (preclusion rule). (Park Slope Med. & Surgical Supply, Inc. v Country-Wide Ins. Co., 19 Misc 3d 1138[A], 2008 NY Slip Op 51063[U], *2 [Civ Ct, Richmond County 2008], citing Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 889-890 [2d Dept 2007]; Presbyterian Hosp., 90 NY2d at 278.)

As recently summarized by this court in Manhattan Med. (supra), the Court of Appeals has reaffirmed that there is only one narrow exception to the preclusion rule—where an insurance company raises the defense of lack of coverage. (See Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007].) In those cases the insurer who fails to issue a timely denial is not precluded from later raising this defense because “the insurance policy does not contemplate coverage in the first instance, and requiring payment{**23 Misc 3d at 243} of a claim upon failure to timely disclaim would create coverage where it never existed.” (Hospital for Joint Diseases at 318.)

Thus, the “key issue” in every case is whether the “facts fit within the narrow no-coverage exception to the preclusion rule” (10 NY3d at 564). A court, in determining whether a specific defense is precluded under the 30-day rule or falls within the exception, must assess whether the defense is more like a “normal exception” from coverage such as a policy exclusion or a lack of coverage in the first instance, i.e., a defense “implicat[ing] a coverage matter.” (10 NY3d at 565.)

The typical defenses that fall within the rubric of lack of coverage are that of a staged automobile accident (Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 284 [2d Dept 2007]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2d Dept 2006]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d Dept 2004]); where the claimant’s injuries arose out of a prior work-related accident rather than a car accident (Chubb, 90 NY2d 195 [1997]); or where the insurance company has articulated a founded belief that the plaintiff is fraudulently incorporated (Bay Plaza Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 1102[A], 2008 NY Slip Op 51925[U] [Civ Ct, Richmond County 2008]; Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno, Gerbino & Soriano LLP, 13 Misc 3d 970 [Civ Ct, Richmond County 2006]).

A medical provider must limit its charges to those permitted by approved fee schedules (Insurance Law § 5108 [a]; 11 NYCRR 68.0 [f]) “which protects a patient from erosion of available benefits by inflated charges.” (Complete Orthopedic Supplies, Inc. v State Farm Ins. Co., 16 Misc 3d 996, 1005 [2007], citing Ops Gen Counsel NY Ins Dept No. 04-06-11 [June 2004].) The fees for services and procedures are governed by the workers’ compensation fee schedule (11 NYCRR 68.1) and durable medical goods fees are governed by the New York Medicaid fee schedule (11 NYCRR Appendix 17-C part F). An insurer who raises this defense will prevail if it demonstrates that it was correct in its reading of the fee schedules unless the plaintiff shows that “an unusual procedure or unique circumstance justifies the necessity” for a charge above the schedules’ fee (11 NYCRR 68.4; Complete Orthopedic Supplies, 16 Misc 3d at 1005). However, before this defense can be invoked an insurer must prove a timely denial.{**23 Misc 3d at 244}

In Fair Price (10 NY3d 556 [2008]), the Court distinguished the defense that the assignor never received the medical supplies from the plaintiff from the defense raised by the insurance company in Chubb (supra)—that the claimant’s injuries arose out of a prior related accident rather than a car accident. Only the latter—”a lack of coverage” defense—fell outside the preclusion rule since if in fact the injuries were unrelated to the accident, the treatment would not have been covered by the automobile liability policy in the first instance. (10 NY3d at 564, quoting Chubb at 199.) The defense that the billed-for services were never rendered, on the other hand, was more akin to a normal exception from coverage, like the defense of billing for unnecessary procedures found by the Chubb court to fall within the preclusion rule. (10 NY3d at 564, citing Chubb, 90 NY2d at 199 [overbilling does not ordinarily implicate a coverage matter].) This is so because in both situations there was [*2]an actual accident and an actual injury, where “coverage legitimately came into existence.” (Id. at 565, quoting Fair Price, 42 AD3d at 285.)

The same reasoning applies to the defense that the claims were in excess of a fee schedule. The parties do not dispute that the assignor is entitled to no-fault insurance benefits. There was an actual accident where the assignor sustained real injuries; the assignor was covered by defendant under an actual insurance policy; and the assignor was prescribed medical equipment which Yklik provided and for which the insurer was billed. Thus, an insurer can only preserve a fee schedule defense by first complying with the 30-day rule and issuing a timely denial. (Complete Orthopedic Supplies at 1005; Jamil M. Abraham M.D. P.C. v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U], *2 [App Term, 2d Dept 2004] [“by virtue of a timely claims denial an insurer is entitled” to raise a fee schedule defense and establish that charges exceeded those permitted by law]; see Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996 [2d Dept 2008].)

In light of these opinions, it is clear that the defenses of fee schedule noncompliance and partial payment made in accordance with the fee schedule are precluded if defendant fails to disclaim coverage in timely a manner pursuant to the no-fault regulations. Here, the denial annexed to plaintiff’s papers as exhibit 3 reveals that defendant received the claims on July 10, 2007 and mailed the denial on September 4, 2007, waiting approximately{**23 Misc 3d at 245} 56 days to send out its denial. By failing to timely submit its denial, defendant is precluded from raising the defense of noncompliance with the fee schedule and summary judgment is granted to plaintiff.

[*1]

Civil Court of the City of New York, Kings County, October 31, 2008

APPEARANCES OF COUNSEL

McDonnell & Associates for defendant. Gary Tsirelman, Brooklyn, for plaintiff.

{**22 Misc 3d at 979} OPINION OF THE COURT

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5102 (a) (1) of the Insurance Law and New York State Insurance Department Regulations (11 NYCRR) § 65-1.1 et seq. for medical services rendered.

Defendant moves for an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint on the grounds that the plaintiff’s assignor failed to appear for scheduled independent medical examinations (IMEs), or in the alternative, partial summary judgment on the grounds that the denials are timely. Plaintiff opposes the motion on the grounds that the defendant has failed to substantiate any defenses or establish that it properly denied plaintiff’s claims.

After careful review of the moving papers, supporting documents and opposition thereto, the court finds as follows:

Defendant argues that the assignor, Jose Lora, failed to appear for scheduled independent [*2]medical examinations, which is a condition precedent to coverage under the insurance policy and no-fault regulations. In support of its argument, defendant annexes as exhibit “I” to its moving papers a copy of the insurance policy. The policy states in part: “3. Medical Reports. The insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require.” (Emphasis added.)

Plaintiff argues that the policy requires the assignor, Jose Lora, to appear before a physician, which pursuant to Education Law, article 131, § 6522 is defined as “[o]nly a person licensed or otherwise authorized under the article shall practice medicine.” Therefore, the defendant’s insurance policy, which plaintiff reads to be clear and unambiguous, requires that the assignor submit to an examination by a physician only, and not any other health care provider. Plaintiff contends that as a result of the IME being scheduled before a psychologist, as opposed{**22 Misc 3d at 980} to a physician, the assignor was not required to attend, and no condition precedent was violated. Plaintiff further argues that any ambiguity with the use of the term “physician” must be construed against the insurer, the drafter of the policy.

The argument raised by plaintiff appears to be one of first impression. This court has researched the issue, having read and written many no-fault decisions, and did not find a case addressing the issue of whether a policy which states “physician” means that any other health care provider is excluded, and only a physician can conduct the independent medical examination of an eligible injured person (EIP).

This court answers in the negative.

In the case before this court, the insurance company sent verification requesting that the injured party appear before an independent psychologist. The court finds that although the policy states physician, the term itself is not ambiguous where it would or should allow the EIP to circumvent the requirement of an independent examination, to determine whether the services rendered were medically necessary. The assignor was seen by a psychologist and therefore, there is no reason why a verification which requests that he appear before an independent psychologist, should not be held as a valid request when the policy states “physician.”

The general provisions of Workers’ Compensation Rules and Regulations (12 NYCRR) § 300.2 (b) (5), which address independent medical examination, examiners, and entities, sets forth the following: “Section 300.2 . . . (5) “Independent medical examiner means a physician, surgeon, podiatrist, chiropractor or psychologist who is authorized to conduct independent medical examinations as defined in paragraph (4) of this subdivision.”

The fee schedules are determined by the Workers’ Compensation Law, and the services rendered by a provider are determined under the New York no-fault fee schedule. The workers’ compensation fee schedules were adopted by the Superintendent of Insurance for use by those [*3]making and processing claims for no-fault benefits.

If there is an issue as to the fees charged by the provider, which in this case is a psychologist, a hearing would be necessary to determine how much should have been billed. The court would look to the workers’ compensation fee schedule, and the fees applicable to a psychologist, not a physician.{**22 Misc 3d at 981} Therefore, this court finds that the EIP, Jose Lora, was required to appear for the scheduled IME.

In addition, this court finds plaintiff’s argument that Dr. Yakov Burstein is not qualified to state whether EIP, Jose Lora, appeared for an IME without merit. The suggestion that a doctor is unaware of or unqualified to assert which patient or patients are scheduled to appear at a scheduled date and or time in his office, because he is without “personal knowledge,” is presumptuous.

Next, this court will address the issue of the timeliness of the verification.

The claim for no-fault benefits begins when an injured party provides notice to the insurer within 30 days after the date of the accident. (See 11 NYCRR 65-2.4 [b].) The injured party is required to submit an application for no-fault benefits, and the written proof of claim is submitted within 45 days after the date services are rendered.

Within 10 business days after receipt of the completed no-fault application, the insurer must forward verification forms for health care or hospital treatment to the injured party or that party’s assignee. After receipt of the completed verification, the insurer may seek additional verification or further proof of claim from the injured party or that party’s assignee within 15 business days thereof. (See 11 NYCRR 65-3.5 [b].) For example, the insurer may seek an independent medical examination of the injured party which must be held within 30 calendar days from receipt of the initial verification form.

In the case at bar, the defendant states that it received the claim for no-fault benefits in the amount of $1,061.63 on December 29, 2005, and an additional claim for $120 on January 9, 2006. On February 17, 2006 the defendant sent a notice to the injured party scheduling an independent medical examination for March 1, 2006. A second notice rescheduling the IME was sent on March 29, 2006 which scheduled the IME for April 10, 2006.

Plaintiff argues that the defendant’s request for verification was untimely, and therefore the statutory prescribed 30-day period within which to issue a denial of the submitted claims was not tolled, and thus the defense of failure to attend an IME has been waived. In response to plaintiff’s argument that the insurer was required to request a verification within 15 days, the defendant argues that the amendment to the statute states as follows:{**22 Misc 3d at 982} “If the additional verification [*4]required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d].)

The time in which an insurer has to pay or deny a claim is extended only upon a proper request for verification pursuant to 11 NYCRR 65-3.5 (a). Since the defendant did not serve its verification request within 10 business days after receipt of the plaintiff’s completed application for no-fault benefits, the 30-day payment or denial period was not tolled. The initial verification request comes before the additional verification request for an independent medical examination. Section 65-3.5 (d) clearly states an IME is a request for “additional verification.” The insurer’s requests for independent medical examinations in connection with a health care provider’s claim for first-party no-fault benefits, made as an initial verification request, rather than an additional verification request, did not extend the time in which to issue a denial of the claims. Consequently, the defendant is precluded from raising the defense of lack of medical necessity, and/or failure to attend a scheduled IME.

Accordingly, defendant’s motion for summary judgment is denied, and the court finds that summary judgment is warranted in favor of plaintiff in the amount of $1,181.63 (the amount of the two claims), with statutory interest, costs and attorney’s fees.

[*1]

Civil Court of the City of New York, Kings County, November 5, 2008

APPEARANCES OF COUNSEL

Bruno Gerbino & Soriano, LLP, Melville, for defendant. Gary Tsirelman P.C., Brooklyn, for plaintiff.

{**22 Misc 3d at 724} OPINION OF THE COURT

George J. Silver, J.

In this action to recover first-party no-fault benefits, interest and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations, defendant Utica Mutual Insurance Company moves, pursuant to CPLR 3212, for an order granting it summary judgment dismissing plaintiff Allstate Social Work and Psychological Services, PLLC’s complaint on the ground that plaintiff’s assignors failed to appear for properly scheduled independent medical examinations (hereinafter IMEs) and examinations under oath (hereinafter EUOs) and thus failed to comply with conditions precedent of the insurance policy.

Chad LaPlate, defendant’s no-fault specialist, avers that defendant’s Special Investigative Unit (hereinafter SIU) investigated the motor vehicle accident that allegedly occurred on May 23, 2003 and which gave rise to the instant claims. As a result of that investigation, defendant’s SIU determined that the alleged loss was the result of an intentional act and that material misrepresentations had been made in the presentation of the claims. Defendant thereafter assigned the claims to Hudson Valley Medical Consultants (hereinafter HVMC) for the scheduling of IMEs of plaintiff’s assignors. Jennifer Harvey, an employee of HVMC, avers that HVMC is an entity that is involved in the scheduling of IMEs on behalf of insurance companies. According to Ms. Harvey, HVMC acts as an intermediary between the insurance company and the examining physician, dentist or psychologist by scheduling IME appointments and then securing the IME report from the examining doctor. Ms. Harvey avers that the psychological IMEs of the assignors were scheduled with Moses Weksler, Ph.D., for August 27, 2003. The letters scheduling the IMEs were prepared and signed by Ms. Harvey and mailed on August 15, 2003. Ms. Harvey states that it is HVMC’s procedure to have an employee prepare and print the IME scheduling letter and the address label for each scheduled IME. The employee ensures that the address label is correct, places the scheduling letter in the envelope, affixes the address label to the envelope and applies the proper postage. The envelopes containing the scheduling letters are placed in an official postal repository on a daily basis. Helen Sickler, the office manager for Moses Weksler, Ph.D., states in her affidavit that neither assignor appeared at Dr. Weksler’s Brooklyn office on August 27, 2003 and that the assignors’ nonappearances were reported to HVMC. On August 28, 2007, Ms. Harvey{**22 Misc 3d at 725} scheduled a second IME for both assignors to be held on September 11, 2003, again at Dr. Weksler’s Brooklyn office. According to Ms. Sickler, both assignors again failed to appear at Dr. Weksler’s office. On October 9, 2003 defendant issued two denials, one for each assignor, denying plaintiff’s claims due to the failure of the assignors to appear for the two scheduled psychological IMEs.

Defendant thereafter retained the law firm of Bruno, Gerbino & Soriano, LLP to schedule and conduct EUOs of defendant’s insured, the driver of the motor vehicle and the assignors. According to defendant’s attorney, EUOs were duly scheduled for October 7, 2003, October 10, 2003, October 28, 2003 and December 23, 2003. The assignors failed to attend the EUOs and on January 29, 2004 defendant issued a second set of denials based upon the assignors’ nonappearances.

In opposition, plaintiff argues that defendant has failed to establish that the assignors violated the policy conditions by failing to appear for the psychological IMEs because, under the express unambiguous terms of the insurance contract, the assignors were only obligated to submit to a medical examination by a physician. Plaintiff contends that licensed psychologists like Dr. Weksler are not physicians as the term is defined by the Education Law, therefore the assignors’ failure to appear for the scheduled IMEs was not a violation of the insurance policy and defendant’s denial of plaintiff’s claims was improper. Plaintiff raises no issue as to the sufficiency of defendant’s proof that the IME request letters were mailed by HVMC in accordance with a standard office practice and procedure and in accordance with the time periods delineated in the no-fault regulations. Nor does plaintiff challenge the sufficiency of defendant’s proof of the assignors’ nonappearances at the IMEs.

Plaintiff further contends that the EUO scheduling letters dated September 30, 2003, October 1, 2003 and October 13, 2003 are defective on their face because they failed to inform the assignors that they would be reimbursed for any loss of earnings or reasonable transportation expenses incurred in complying with the requests. Plaintiff also argues that the December 10, 2003 EUO scheduling letter is defective because the defendant improperly scheduled the EUOs to be held in Melville, New York, which plaintiff argues was not reasonably convenient to the assignors who reside in Brooklyn. In the alternative, plaintiff argues that if the language of the December 10, 2003 EUO scheduling letter is sufficient, the letter should{**22 Misc 3d at 726} be treated as a first request for additional verification. Since defendant failed to issue a follow-up request to the December 10, 2003 scheduling letter, plaintiff contends, defendant failed to comply with the follow-up verification requirements outlined in the regulations. Finally, plaintiff informs the court that it did not cross-move for summary judgment “due to insufficient time to file the motion”^[FN1] but nevertheless requests that the court search the record and grant summary judgment in its favor.

Defendant argues in reply that this court previously denied plaintiff’s motion for summary judgment. Defendant also concedes that Dr. Weksler is not a physician as defined by the Education Law but argues that the endorsement’s definition of “medical expense” includes all professional health services, not only medical services provided by physicians. Since the legislature included medical expenses for all professional health services as part of covered basic economic loss, defendant reasons, it also intended to permit any health care provider to perform IMEs.

Analysis

“Pursuant to Insurance Law § 5103 (d), the Legislature empowered the Superintendent of Insurance to promulgate regulations establishing minimum benefit standards for policies of insurance providing coverage for the payment of first-party benefits and to set standards for the payment of first-party benefits by self-insurers. Pursuant to this authority, the Superintendent promulgated Insurance Department Regulations (11 NYCRR) § 65-1.1, which sets forth the basic form of the ‘Mandatory Personal Injury Protection Endorsement’ which must be included in every owner’s policy of liability insurance issued on a motor vehicle in this state” (Alleviation Supplies Inc. v Enterprise Rent-A-Car, 12 Misc 3d 787, 790 [Civ Ct, Richmond County 2006]).

The mandatory personal injury protection endorsement (hereinafter endorsement) provides, in pertinent part, that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1 [d] [Conditions] [Proof of Claim; Medical, Work Loss, and{**22 Misc 3d at 727} Other Necessary Expenses]).^[FN2] The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]). The term physician is not defined in the endorsement but the Education Law provides that “[o]nly a person licensed or otherwise authorized under this article shall practice medicine or use the title ‘physician’ ” (Education Law § 6522). Defendant concedes in its reply that a licensed psychologist such as Dr. Weksler is not a physician. The question then is may any health provider perform an IME of an eligible injured person or, as the endorsement appears to require, only a physician?

Though there appears to be no case law addressing the point, in an opinion letter dated March 12, 2004, the State Insurance Department answered the following question:

“When a No-Fault eligible person is being treated by a chiropractor and the person’s insurer has requested a medical examination (‘IME’) of that person in order to evaluate the medical necessity of the chiropractic services performed, must the medical examination be performed by a chiropractor, or may it be performed by a medical doctor?” (2004 Ops Gen Counsel NY Ins Dept No. 04-03-10.)

In holding that an “insurer’s medical examination of an eligible injured person to evaluate the medical necessity of health services provided by a chiropractor may be performed by a medical doctor, and need not be performed by a licensed chiropractor” (id.) the Insurance Department stated “[t]here is no requirement in the regulation that a claim denial must be based upon a medical examination conducted by a health provider of the same speciality area as the treating health provider” (id.). Implicit in the Insurance Department’s interpretation, which is entitled to great deference unless it is “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]), is that an independent medical examination of an eligible injured person may be performed either by a physician, as the term is defined in the Education Law and used in the endorsement, or by any other{**22 Misc 3d at 728} licensed health provider selected by or acceptable to the insurer. It is for the court or an arbitrator to “consider the qualifications of the health provider performing the IME in determining the validity of a claim denial” (2004 Ops Gen Counsel NY Ins Dept No. 04-03-10). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of health providers who could perform IMEs, thereby delaying the processing of no-fault claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

The affidavits submitted by defendant are sufficient to establish that defendant’s initial IME requests, its follow-up IME requests and its denial of claim were mailed pursuant to a standard office practice and procedure, and that the assignors failed to appear for the IMEs (Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]; Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51954[U] [App Term, 2d & 11th Jud Dists 2008]). The court, therefore, need not address plaintiff’s arguments concerning the sufficiency of defendant’s EUO requests.

Accordingly, it is hereby ordered that defendant’s motion for summary judgment dismissing plaintiff’s complaint is granted.

Footnotes

Footnote 1: See attorney’s affirmation in opposition.

Footnote 2: Since the endorsement is promulgated by the Superintendent of Insurance, and is not drafted by the insurer, plaintiff’s argument that any ambiguity in the endorsement must be construed against the insurer is incorrect.

Civil Court of the City of New York, Richmond County

14725/07

Defendant: Moia A. Doherty, Esq.

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11533-9850

Plaintiff:Bakers, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Katherine A. Levine, J.

This case invokes the inverted trajectory that must be followed when an insurer raises the defense that a medical services provider has failed to timely submit its proof of claim.

Defendant Clarendon National Ins. Co., (“defendant” or “Clarendon”) moves for summary judgment against Plaintiff, Joseph Rockman LMT a/a/o Delilah Serrano (“plaintiff” or “Rockman”) on the grounds that plaintiff failed to timely submit written proof of claim within 180 days after the date medical services were rendered pursuant to 11 N.Y.C.R.R. 65.12 (“old

rules”) ^[FN1] or within 45 days after the services were rendered pursuant to 11 N.Y.C.R.R. 65-1.1 (“new rules”).^[FN2]Defendant alleges that the bills, dated 4/17/07, are for services rendered in [*2]October – November 2002 ; the bills are thus dated some four and a half years after the services were rendered. Specifically, defendant asserts that the first time it learned about this claim was when plaintiff served its law office with a summons and complaint dated August 16, 2007, which attached a chart referring to such bill dated 4/17/07, although no such bill was attached.

Defendant further avers that its law office received the actual bill, dated 4/17/07, when it received discovery in a related case involving the same medical provider on or about,

October 10, 2007. Defendant thereupon mailed its denial of the bill on, November 7, 2007 within 30 days of its receipt of the bill, thus preserving the defense of late submission.

Plaintiff offers no explanation as to why it has failed to present a health insurance claim form dated within 180 days of the dates of services in October – November 2002. Nor does it address how it came to pass that defendant was made aware of the claim’s existence through discovery in another matter. Rather, plaintiff cross-moves for summary judgment alleging that plaintiff made its prima facie case by setting forth that the bills were mailed and not paid or denied within thirty days. In support of its motion, plaintiff submits a generic affidavit from Dr. Joseph Rockman, dated December 10, 2007, which details in great detail the office’s practices and procedures for mailing out claims for service and then states that in accordance with that procedure, the “aforementioned bills, which are the subject of this lawsuit, were mailed to the defendant.” Accompanying this affidavit were Dr. Rockman’s notes of his treatment of the assignor during 2002-03 and the Health Insurance Claim form dated, 4/17/07, for services purportedly rendered in November 2002. Plaintiff fails to explain why the only health insurance

claim it can produce is dated April 17, 2007 and does not address how this particular claim form was formulated or mailed.

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented” Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980). Once such proof has been offered, in order for the opposing party to defeat the motion for summary judgment, it must “show facts sufficient to require a trial of any issue of fact.” Inwood Hills Medical P.C. v. Bronx Neurodiagnostics P.C., 3 Misc 3d 1110A, 787 NYS2d 678 (Civil Ct., NY Co., 2004) quoting CLR 3212 (b). See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). If the opposing party fails to submit evidentiary facts to controvert the fact in the movant’s papers, then summary judgment must be grated since there are not triable issues of fact. Inwood, supra . See, Kuehne & Nagel, Inc. v. F.W. Baiden, 36 [*3]NY2d 539 (1975).

Pursuant to Insurance Law §5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. The old regulations required that written proof of claim must be submitted to the insurance company “as soon as reasonably practicable, but in no event later] than 180 days after the date services are rendered or 180 days after the date written notice was given to the [insurer].” (11 N.Y.C.R.R. 65.12) See, Montefiore Medical Center v. Mary Immaculate Hospital, 9 AD3d 354 (2d Dept. 2004). Within 30 days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 N.Y.C.R.R. 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 N.Y.C.R.R. 65.15 [d] [1]). A claim need not be paid or denied until all demanded verification is provided (see 11 N.Y.C.R.R. 65.15 [g] [1] [I] Id at 355 ; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553,(2d Dept. 1999). In the event an insurer fails to timely deny a claim or request verification from the hospital, the insurer is precluded from asserting that the claim was untimely or incomplete . Montefiore Medical Center,, supra at 355. See, Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282,(1997); New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 (2002).

Although a health care provider is required to submit its proof of claim within 180 days after the services were rendered, ” an insurer is precluded from asserting the defense of a provider’s untimely submission of proof of claim if it does not issue a timely denial of claim.” Mid Atlantic Medical P.C. , v. Travelers Indemnity, Co., 12 Misc 3d 147A, 824 NYS2d 769 (App. Term, 1st Dept. 2006). See, New York & Presbyt. Hops. V. Eagle Ins. Co., 17 AD3d 646 (2d Dept. 2005); Montefiore Medical Ctr., supra

It is clear that defendant Clarendon may assert this defense since it timely denied the claim. Defendant submitted two affidavits from its claims representative averring that Clarendon never received any claim forms dated 2002 or 2003 for services rendered between, November 1- 15, 2002, and hence could not have denied such claim. Rather, defendant first became aware of the bills dated April 17, 2007 for services rendered back in 2002 when its attorneys were served with a summons and complaint, dated July 2007, in this matter. Annexed to the complaint was a chart referring to the assignor, listing the amount owed and the dates of service. The actual bills for these services were not

received by Clarendon until October 10, 2007, when the they were included as part of discovery in a related case sent to defendant’s attorneys. The affiant claims examiner then issued a denial on November 7, 2007, within 30 days of the bill’s receipt, and the denial was mailed on that same day in accordance with the standard office mailing procedures. .

Having properly asserted this defense, defendant is entitled to summary judgment unless [*4]plaintiff can raise a factual issue as to whether the aforementioned bills were in fact mailed on, December 14, 2002, as asserted by plaintiff. “Service of both the no-fault claim and assignment forms is established by an actual affidavit of mailing or by proof of an office practice and procedure followed . . . in the regular course of . . . business’… geared so as to ensure the likelihood that [the item] is always properly addressed and mailed Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996, 999 (Civil Ct., Queens Co.. 2007) citing Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830(1978). . A post office receipt may supply additional “direct proof of actual mailing” (LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728, (3d Dept 2006) provided the evidence relates the receipt to an identified mailing (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 (2d Dept 2006).Such proof may also include a medical services bill with a certified mail return receipt, (Hospital for Joint Diseases and Presbyterian Hosp. v. Travelers Property Casualty Ins. Co., 34 AD3d 352 (2d Dept. 2006); NY. & Presbyterian Hosp. V. Allstate Ins. Co., 30 AD3d 492 (2d Dept. 2006); and or a signed return receipt card which referenced the patient and forms and an affidavit of a third party biller (NY. & Presbyterian Hosp. v. Travelers Prop. Casualty Ins. Co., 37 A.D 3d 683 ( 2d Dept. 2007).

In the instant matter, plaintiff has failed to present evidentiary facts to controvert defendant’s denial based upon plaintiff’s untimely submission of the bills. No presumption of mailing was created because the affidavit of Dr. Rockman did not state that he actually mailed the particular claims at issue, and Dr. Rockman’s recital of his office practices did not establish, by admissible proof, that this procedure was in fact followed on, December 12, 2002. See, Multiquest PLLC v. Allstate Ins. Co., 10 Misc 3d 1069(A), .814 NYS2d 563 (Civil Ct., Queens Co. 2004)( affidavit of plaintiff s owner, in which he does not attest to personal knowledge of this claim but states that he is “fully familiar with all the policies, practices and procedures” of plaintiff, is insufficient to lay a foundation for the exhibits attached to the moving papers. “Significantly, plaintiff fails to establish the mailing of its claim to defendant, a necessary element of its prima facie case.”) (See Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 774 NYS2d 564 (2d Dept 2004); Residential Holding Corp , supra . Fatally missing from plaintiff’s papers is a copy of the medical claim dated in 2002 that was purportedly mailed on December 13, 2002.

Specifically, Dr. Rockman averred that it is his office’s customary practice that after the envelope containing the bill is delivered to the U.S post office, a photocopy of the bill and supporting documents are then placed in the appropriate patient file and a notation is made on the file confirming the date and amount of the bill and the date the bill was mailed. He then alleged that the bills which are subject of this lawsuit were mailed on 12/13/02. However, as set forth above, plaintiff has failed to produce the bill that was purportedly mailed in December 2002 or even the notation that was made on the file concerning the mailing, and none of the documents that plaintiff did produce in support of its motion contain any reference to a mailing in December 2002. In fact, the only bill that plaintiff did produce for the dates of

service in question is dated April 17, 2007, and plaintiff has offered no evidence concerning the mailing of the 2007 bill. As such, plaintiff has failed to produce any evidence that could be introduced at trial so as to defeat defendant’s motion for summary judgment.

Given the aforementioned reasoning, plaintiff’s cross-motion for summary judgment is denied. Along this line, it should be noted that plaintiff has failed to establish its prima facie right to judgment as it has failed to demonstrate its timely and proper submission of the claims in question See, Presbyterian Hospital, supra , 90 NY2d 274 (1997), Elmont Open MRI & Diagnostic Radiology v. Geico, 2008 NY Slip Op. 50113U, 18 Misc 3d 1117A (Dist. Ct., Nassau Co. 2008). As set forth above, plaintiff has failed to provide admissible proof of mailing of the purported bill dated December 2002. Furthermore, plaintiff has offered no evidence whatsoever to lay a foundation for the admission of the bill dated April 17, 2007. See, e.g. Complete Orthopedic Supplies v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007). concerning the mailing of the bill dated April 17, 2007 that it has been able to produce.

In sum, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion is denied.

The foregoing constitutes the Decision and Order of the Court .

Dated October 17, 2008______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________

A P P E A R A N C E S

Defendant: Moia A. Doherty, Esq.

50 Charles Lindbergh Boulevard, Suite 400

Uniondale, New York 11533-9850

Plaintiff:Bakers, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, New York 11501

Footnotes

Footnote 1:Defendant originally contended that plaintiff failed to submit the claims with 45 days of the date of service but later amended its motion to claim Claim that plaintiff violated the 180 day rule provision under the old regulations.

Footnote 2: Insurance Department Regulation 11 N.Y.C.R.R. 65-3.3 and 65-2.4 shortened the time period filing no fault claims from 180 days to 45 days from the rendering of medical services. Pursuant to the revised insurance regulation, all automobile insurance policies issued or renewed after April 5, 2002 are required to include a revised Mandatory Personal Injury Protection Endorsement (“Endorsement”) which reduces the time within which claims are to be submitted from 180 days to 45 days (11 N.Y.C.R.R.] § 65.12 [e], now Insurance Department Regulations [11 N.Y.C.R.R.] § 65-1.1 [b]. See, Mtr. Of Medical Society of the State of NY v. Serio, 298 AD2d 255 (1st Dept. 2002); Eagle Chiropractic P.C., v. Chubb Indemnity Ins. Co., 19 Misc 3d 129A, 859 NYS2d 902 (App. Term, 2d Dept. 2008); S & M Supply v State Farm

Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 791 NYS2d 873 (App Term, 9th & 10th Jud Dists 2004). The latest date of expiration for an automobile insurance policy which contained the prior version of the Endorsement would be April 2003 S & M Supply v State Farm Mut. Auto. Ins. Co. supra .