[*1]

Civil Court of the City of New York, Kings County, May 2, 2008

APPEARANCES OF COUNSEL

Rossillo & Licata, P.C., Westbury (John J. Rossillo of counsel), for defendant. Law Offices of Bruce Newborough, P.C., Brooklyn (Damin J. Toell of counsel), for plaintiff.

{**20 Misc 3d at 292} OPINION OF THE COURT

Peter P. Sweeney, J.

Plaintiff Second Medical, P.C., as assignee of Marvin Calender, commenced this action to recover assigned first-party no-fault benefits. The trial of the action took place on December 20, 2007. The only witness to testify was Inga Lev, the president of Maugust, Inc., the company that does plaintiff’s medical billing.

The issue presented is whether Ms. Lev’s testimony was sufficient to establish the admissibility of the underlying no-fault claim form, which incorporated information contained in medical records which were neither offered nor admitted in evidence and which were never shown to be admissible under any hearsay exception. The court answers this question in the negative.

Factual Background

Ms. Lev testified that once a week, someone from plaintiff’s office would deliver to her a number of patient files. Each file contained one or more medical reports which described the [*2]nature of the services that plaintiff purportedly provided to a particular patient. Each file also contained an executed assignment of benefits form and information identifying the insurer who was responsible for payment of first-party no-fault benefits.

Either Ms. Lev or one of her coworkers would prepare no-fault claim forms based upon the information contained on the documents contained in patient files and mail the claim forms to the insurers responsible for payment of the first-party no-fault benefits along with an executed assignment. Ms. Lev gave no testimony concerning the practices and procedures that plaintiff utilized in creating the documents contained in the patient files.

Ms. Lev testified that she prepared the no-fault claim form in this action pursuant to the above procedures and mailed it to the defendant with an executed assignment on November 20, 2002. She testified that as of the date of trial, the first-party no-fault benefits due and owing were not paid. In its denial of claim form, which was received in evidence, defendant acknowledged receiving the claim form on November 25, 2002. When plaintiff’s counsel offered the claim form in evidence, defendant’s counsel objected arguing that Ms. Lev failed to lay a proper foundation for its admission as a business record pursuant to CPLR 4518 (a).

Relying primarily on Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U]{**20 Misc 3d at 293} [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s counsel argued that since Ms. Lev established plaintiff had a business duty to Maugust to deliver the patient files and that Maugust routinely relied on the medical reports and other documents contained in the files and fully incorporated them into no-fault claim forms which it created in the regular course of its business, a proper foundation for the admission of the claim form as a business record was laid.

The court reserved decision on defendant’s objection. The parties thereafter submitted memorandums of law in support of their respective positions. For the reasons stated below, the court now sustains defendant’s objection.

Legal Analysis

A plaintiff provider establishes a prima facie entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). It is now clear that this language should not be interpreted as dispensing with the requirement that the provider tender evidentiary proof of the transaction sued upon “in admissible form” (Bajaj v General Assur., 18 Misc 3d 25, 27-28 [App Term, 2d & 11th Jud Dists 2007]). Thus, to prevail in an action to recover first-party no-fault benefits, the provider must proffer evidence in admissible form establishing the facts asserted in the underlying no-fault claim form (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 47 [App Term, 2d & 11th Jud Dists 2006] [“(t)o the extent defendant issued denial of claim forms (NF-10s) or admitted receipt of plaintiff’s claim forms, such admissions did not concede the facts asserted in the claim forms and it remained plaintiff’s burden to proffer such evidence in admissible form, which it failed to do”]; see also Bajaj, supra; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]).

Here, plaintiff attempted to prove the facts asserted in the claim form by offering it as a [*3]business record pursuant to CPLR 4518 (a). CPLR 4518 (a), which sets forth the criteria for admission under what is commonly referred to as the business record exception to the hearsay rule, provides:

“Any writing or record, whether in the form of an{**20 Misc 3d at 294} entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

The three foundation requirements of CPLR 4518 (a) are

“first, the record must be made in the regular course of business—reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record—in other words, the record was made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” (People v Cratsley, 86 NY2d 81, 89 [1995], citing People v Kennedy, 68 NY2d 569, 579-580 [1986]).

It is well settled that in order to lay these foundational requirements, the proponent of the record must call as a witness someone with knowledge of the maker’s business practices and procedures (see e.g. Blair v Martin’s, 78 AD2d 895 [2d Dept 1980]; Sabatino v Turf House, 76 AD2d 945, 946 [3d Dept 1980]; see also Hefte v Bellin, 137 AD2d 406, 408 [1st Dept 1988]). The witness need not have made the record or even be familiar with the record (Faust v New York City Tr. Auth., 4 Misc 3d 89, 91 [App Term, 2d & 11 Jud Dists 2004]). It is not even required that the witness be a current or former employee of the business that created the record (see e.g. People v Cratsley, 86 NY2d 81 [1995]; People v Meekins, 34 AD3d 843, 845 [2d Dept 2006]; People v DiSalvo, 284 AD2d 547 [2d Dept 2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [2d Dept 1986]; William Conover, Inc. v Waldorf, 251 AD2d 727 [3d Dept 1998]). However, unless the witness demonstrates some familiarity with the particular record keeping procedures of the business that created the record “such that he [can] state that the record he received was made in the regular course of [that] business, that{**20 Misc 3d at 295} it was in the regular course of [that] business to make the record and that it was made contemporaneously with [the events recorded in the record]” the record is inadmissible (People v Surdis, 275 AD2d 553, 554 [3d Dept 2000]).

Here, Ms. Lev did not demonstrate any familiarity with plaintiff’s business practices and procedures. Accordingly, she did not establish that the documents contained in Mr. Calender’s patient file were business records within the meaning of CPLR 4518 (a). Further, she did not establish the admissibility of the file documents under any other hearsay exception. Since all the documents contained in Mr. Calender’s patient file constituted inadmissible hearsay, it necessarily follows that the no-fault claim form, which incorporated these records, is also hearsay. [*4]

Plaintiff’s reliance on Pine Hollow Med., P.C. is misplaced. In Pine Hollow Med., P.C., the court stated that

“it is well-settled that where an entity ‘routinely relies upon the business records of another entity in the performance of its own business’ . . . , and ‘fully incorporate[s]’ said information into records made in the regular course of its business . . . , the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s accuracy” (13 Misc 3d 131[A], 2006 NY Slip Op 51870[U], *1-2 [2006] [citations omitted and emphasis added]).

While this is a true statement of law, it was never demonstrated in this case that the documents contained in the patient files which Ms. Lev and her coworkers routinely relied upon and fully incorporated into the no-fault claim forms qualified as business records within the meaning of CPLR 4518 (a). The root of plaintiff’s argument appears to be that the term “business records” as used in Pine Hollow Med., P.C. means any records, including records that may constitute hearsay. The premise of plaintiff’s argument is without logic or support and is belied by the cases cited in Pine Hollow Med., P.C.

In all the cases cited in Pine Hollow Med., P.C., where documents were admitted in evidence through the testimony of a witness who was neither a current nor former employee of the person or entity that created the documents, the witness had demonstrated his or her familiarity with the business practices and procedures pursuant to which the documents were created. These witnesses were therefore able to qualify the documents{**20 Misc 3d at 296} as business records. In People v Cratsley, the foundation witness testified that the IQ test report that was admitted in evidence was prepared by an independent psychologist as an initial evaluation of a client, that it was conducted in accordance with her employer’s requirements and on her employer’s behalf, that the report was prepared at the time the examination took place and that the examination was conducted to fulfil certain statutory and regulatory requirements with which she was familiar (86 NY2d at 88). In People v DiSalvo, the foundation witness testified that he was familiar with the specific business practices and procedures of the dump site facility that created the records which the court admitted in evidence (284 AD2d at 548-549). In Plymouth Rock Fuel Corp. v Leucadia, Inc., the foundation witness testified that the fuel oil delivery tickets that were admitted as evidence were prepared by contract drivers that were hired by his company who had a business duty to record certain information on the tickets, including the amount, location and date of fuel delivered (117 AD2d at 728).

Here, plaintiff laid absolutely no foundation for the admission of the documents contained in Mr. Calender’s patient file. To accept plaintiff’s interpretation of Pine Hollow Med., P.C., this court would have to conclude that these documents were admissible notwithstanding that plaintiff had never demonstrated that the informant had personal knowledge of the acts, events and occurrences that the records document and was under a business duty to report them to the entrant. This court would also have to conclude that it was not necessary for the plaintiff to demonstrate that it was within the scope of the entrant’s business duty to record the acts, transactions and occurrences and that each participant in the chain producing the records, from the initial declarant to the final entrant, was acting within the course of regular business or that the declarations contained in the records were admissible through some other hearsay exception. As stated by the Court of Appeals in Matter of Leon RR (48 NY2d 117, 122-123 [1979]): [*5]

“To constitute a business record exception to the hearsay rule, the proponent of the record must first demonstrate that it was within the scope of the entrant’s business duty to record the act, transaction or occurrence sought to be admitted. But this satisfies only half the test. In addition, each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting{**20 Misc 3d at 297} within the course of regular business conduct or the declaration must meet the test of some other hearsay exception (Johnson v Lutz, 253 NY 124, 128; Toll v State of New York, 32 AD2d 47, 50). Thus, not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well (Richardson, Evidence [10th ed-Prince], § 299). The reason underlying the business records exception fails and, hence, the statement is inadmissible hearsay if any of the participants in the chain is acting outside the scope of a business duty (Johnson v Lutz, supra) . . .

“Unless some other hearsay exception is available (Toll v State of New York, supra), admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he is under a business duty to report it to the entrant (Johnson v Lutz, supra; cf. Model Code of Evidence rule 514).”

In sum, since the documents contained in Mr. Calender’s patient file constituted hearsay, the no-fault claim form which was based on the information contained in these documents is also hearsay. Hearsay cannot be transformed into nonhearsay simply because a business routinely relies upon it and integrates it into its own records.

Inasmuch as plaintiff did not proffer evidence in admissible form establishing the facts asserted in the claim form, plaintiff did not make out a prima facie case.

Accordingly, it is hereby ordered that judgment be entered in favor of the defendant dismissing plaintiff’s complaint.

Civil Court of the City of New York, Kings County

4490/06

Noach Dear, J.

Plaintiff All-Boro Medical Supplies, Inc. commenced this action to recover assigned first-party no-fault benefits in the amount of $822.00 for medical supplies that it provided to its assignor, Ramel King, who was purportedly injured in an automobile accident on January 30, 2005.

On February 13, 2008, the parties agreed to a trial based on stipulated facts. While there are no questions of facts requiring resolution, the matter presents an interesting question of law; whether plaintiff’s failure to submit a prescribed NF-3 claim form in response to defendant’s requests for additional verification of the claim tolled the 30 day period in which defendant had to pay or deny the claim? For the following reasons, the court answers this question in the affirmative.

Underlying Facts:

Following the accident, plaintiff provided Mr. King with various assistive medical equipment which included a heating lamp with infrared element, a massager for reduction of muscle spasm and a TENS unit. On February 16, 2005, Mr. King assigned his rights to collect first-party no-fault benefits for the equipment to the plaintiff. On May 6, 2005, Edward Shapiro, Esq., plaintiff’s counsel, submitted a claim for the first-party no-fault benefits to defendant. After receiving the claim, defendant served upon the plaintiff a request for additional verification of the claim demanding that plaintiff submit a prescribed NF-3 claim form. When plaintiff failed to comply with the request, defendant made a follow-up request. The parties have stipulated that the initial and follow-up request were made in accordance with protocols for requesting additional verification set forth in the no-fault regulations.

While plaintiff has not yet provided defendant with a NF-3 claim form, plaintiff submitted other materials as proof of claim, including letters of medical necessity from Alex Khait, D.C. and Alexander Rozenberg, M.D., which indicate that Mr. King was diagnosed as suffering from unspecified neuralgia, radiculitis and lumbosacral and cervical injuries as a result of the accident.

COMMENTS:

It is well settled that 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 (Insurance Law § 5106(a); 11 NYCRR 65-3.5; see also Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 278, 660 NYS2d 536, 683 NE2d 1 [19970 ). An insurer’s failure to pay a no-fault claim within 30-day renders no-fault benefits overdue ( see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1] ).

The 30-day period may be extended if the insurer demands additional verification of the claim ( see 11 NYCRR 65.15[d][1],[e]; New York & Presbyt. Hosp. v. Allstate Ins. Co., 30 AD3d 492, 493, 819 NYS2d 268 [2nd Dep’t 2006]; New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 568, 569, 774 NYS2d 72 [2nd Dep’t 2004] ). If requested verification is not supplied to the insurer within 30 days from the insurer’s initial request, the insurer is required to issue a follow- up request in accordance with 11 NYCRR 65.15 [e][2] ( see New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 584, 744 NYS2d 201 [2nd Dep’t 2002] ). Parenthetically, “[a] claim need not be paid or denied until all demanded verification is provided” ( New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., supra at 570, 774 NYS2d 72, see Insurance Law § 5106[a]; 11 NYCRR 65-3.5[c], 65-3.8[a][1]; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., supra at 584, 744 NYS2d 201; Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554, 692 NYS2d 665 [2nd Dep’t 1999] ). Further, when a medical provider fails to provide properly requested verification of a claim, the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the provider is premature (New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., supra at 570, 774 NYS2d 72).

The parties have stipulated that plaintiff submitted the claim on May 6, 2005 and that defendant’s requests for a prescribed NF-3 claim form were made in accordance with the protocols for requesting additional verification of a claim. The parties have also stipulated that to date, plaintiff has not provided a prescribed NF-3 claim form which is also know as a verification of treatment by attending physician or other provider of health service form. The required contents of this form is contained in Appendix 13 of the Ch. III, Subch. B, Pt. 65 of Insurance Department Regulations.

Plaintiff maintained at trial that defendant was required to “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (Insurance Department Regulation 11 N.Y.C.R.R. § 65-3.5[f] ). Plaintiff further maintained that the various materials it provided to the defendant in connection with the claim met this requirement. Plaintiff argued that since defendant did not pay or deny the claim within 30 days of receipt of these materials, no-fault benefits are overdue.

Defendant maintained that 11 N.Y.C.R.R. § 65-3.5[f] gave it the unconditional right to request the submission of a prescribed NF-3 claim from as additional verification of the claim and that since plaintiff has yet to provide one, the 30 day period in which it has to pay or deny the claim continues to be tolled.

The question of law presented turns on how 11 N.Y.C.R.R. § 65-3.5(f) should be interpreted. 11 N.Y.C.R.R. § 65-3.5(f) provides:

An insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits, the [*3]prescribed verification of treatment by attending physician or other provider of health service, and the prescribed hospital facility form.

“[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583, 673 NYS2d 966, 696 NE2d 978 [1998] ). Further, “meaning and effect should be given to all language of a statute * * *. Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning” (Cohen v. Lord, Day & Lord , 75 NY2d 95, 100, 551 NYS2d 157, 550 NE2d 410 [1989] ; see also, McKinney’s Cons. Laws of NY, Book 1, Statutes § 231, at 390). “Generally, the same canons of construction are applicable to legislation and administrative regulations” (Garzilli v. Mills, 250 AD2d 131, 137, 681 NYS2d 176, 179 [3rd Dep’t 1998] ).

Applying these principles, 11 N.Y.C.R.R. § 65-3.5(f) should be interpreted as giving insurers the right to request the submission of one of the prescribed forms referred to in the regulation as additional verification of a claim, even where materials were submitted as proof of claim that contained substantially the same information that a prescribed form requires. This interpretation gives meaning and effect to all the language in 11 N.Y.C.R.R. § 65-3.5(f). If the court were to adapt plaintiff’s urged construction, the court would in effect be rejecting as superfluous the entire second sentence of 11 N.Y.C.R.R. § 65-3.5(f) which unequivocally states that insurers may require the submission of a prescribed form. Further, it is not impracticable to give the first and second sentence of the regulation distinct and separate meanings. The first sentence can be viewed as controlling what insurers must accept as proof of claim but not as a limitation on what they may seek as additional verification of a claim. The second statement can be viewed clear direction that a request for a prescribed form is a valid request for additional verification.

This result also comports with those reported cases which have addressed an insurer’s entitlement to the submission of a prescribed no-fault forms as additional verification of a claim (see First Help Acupuncture, P.C. v. Progressive Northeastern Ins. Co.,15 Misc 3d 144(A), 2007 NY Slip Op. 51167(U) [App Term, 2d & 11th Jud Dists] (proof of insurer’s timely denial of claim on the ground that on the ground “a prescribed authorization or assignment of benefits was not submitted and/or was not properly executed” raised triable issue of fact as to plaintiff’s entitlement to summary judgment); Metroscan Medical Diagnostics, P.C. v. Progressive Casualty Insurance Co., 15 Misc 3d 126 (A), 2007 NY Slip Op. 50500 (U) [App. Term, 9th & 10th Jud Dists] (30 day period tolled where plaintiff’s failed to provide assignment of benefits in the form required by the No Fault regulations]; see also Doshi Diagnostic Imaging Services v. Progressive Insurance Co., 12 Misc 3d 144 (A), 2006 NY Slip Op. 51430 (U) [App. Term, 9th & 10thth Jud Dists] ).

Based on the preceding analysis, this Court determines that defendant has demonstrated that the 30 day period in which it had to pay or deny the claim was tolled by its request for a prescribed NF-3 form. Hence, plaintiff has failed to establish that payment of no-fault benefits is overdue.

Accordingly, it is hereby

ORDERED that judgment be entered in defendant’s favor dismissing the claim as premature (New York Hospital Medical Center of Queens v. Country-wide Insurance Co., 295 [*4]AD2d 583 [2d Dept., 2002] ).

This constitutes the Decision and Order of the Court.

Dated: April 11, 2008_____________________________

Noach Dear

Civil Court Judge

Civil Court of the City of New York, Richmond County

025762/06

Counsel for Plaintiff:

Colleen Terry, Esq.

Baker, Sanders Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799

Counsel for Defendant:

Lindsay Alexander, Esq.

Epstein & McDonald

One Whitehall Street, 13th Floor

New York, NY 10004-2109

212-248-9100

Katherine A. Levine, J.

Defendant Nationwide Property and Casualty (“defendant”) moves to dismiss plaintiff Cambridge Medical, P.C. A/A/O Richard Edwards ( “plaintiff”) complaint for failure to comply with defendant’s Demand for a Verified Bill of Particulars and Combined Demand Request pursuant to C.P.L.R § 3126. Defendant alleges that because plaintiff failed to respond to it’s discovery request, defendant would be severely prejudiced at trial. In the alternative, defendant requests that the court grant summary judgment because the institution of the lawsuit is premature as plaintiff failed to comply with its verification requests.

In its verification requests, defendant’s claims department asked for certain information: the certificate of incorporation, the SS4 (application of federal employer identification program), the IRS acknowledgment letter approving TIN and the completed W-9 form, the name, address, license, certification, etc. for each person connected with the treatment or testing of the assignor in the instant claim, and sale of shares of ownership. Although defendant does not so state, the aforementioned requests appear to give rise to a defense of fraudulent incorporation in violation of the truth seeking opportunity set forth in 11 N.Y.C.R.R. sec.65.3.16(a)(12).

In its Demand for a Verified Bill of Particulars, counsel for defendant seeks a plethora of documents including items which appear to be similar to those requested in the verification requests: the names, addresses and birth dates of all directors, officers, shareholders, employees and owners listed on the stock certificate for plaintiff’s facility at time services were rendered (1-5).

Plaintiff asserts that it provided discovery that was proper and that defendant is not entitled to further discovery since it is merely engaging in a fishing expedition that is prohibited by State Farm Insurance Co. v. Mallela, 4 NY3d 313 (2005) and the regulations. Plaintiff also argues that under the No-Fault Law, the need for disclosure “must be substantiated by the [*2]reasons for the denial contained in the NF-10 and not simply predicated upon a plethora of unreserved affirmative defenses inserted in the answer as an afterthought.” See Metropolitan Radiological Imaging v. State Farm Mutual Auto Ins. Co., 2005 Slip Op 25063 (NY Civil Ct. 2006). Finally, plaintiff asserts that the verification forms were not timely mailed and that the affidavits of mailing were inadmissible.

In Mallela, the Court of Appeals held that insurers may withhold payment for medical services provided by fraudulently licensed medical service corporations to whom patients, who are covered by no-fault insurance, have assigned their claims. Insurance Law §5102 requires no-fault carriers to reimburse patients or their medical provider assignees for “basic economic loss.” In order to combat incidences of fraud, the Superintendent of Insurance promulgated 11 N.Y.C.R.R. 65-3.16(a)(12), which excludes from the definition of basic economic loss payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement. 4 NY3d at 320. After finding this regulation valid, the Court held that carriers “may look beyond the face of licensing documents to identify wilful and material failure to abide by state and local law.” Id at 321. Addressing the defendants’ contention that the insurance companies would turn this “investigatory privilege into a vehicle for delay and recalcitrance,” the Court stated:

“The regulatory scheme …. does not permit abuse of the truth-seeking opportunity that 11 N.Y.C.R.R. sec. 65-3.16(a)(12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause. (See N.Y.C.R.R. sec 65-3.2(c). In the licensing context, carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud. Technical violations will not do…We expect and the Legislature surely intended, vigorous enforcement by the Superintendent against any carrier that uses the licensing requirement regulation to withhold or obstruct reimbursement to non-fraudulently incorporated health care providers. “

4 NY3d at 322.

The issue presented by these motions is therefore whether the language contained in Mallela requiring that a defendant insurer show “good cause” by demonstrating behavior on the plaintiff’s part ” tantamount to fraud,” applies to discovery requests and or verification requests. Mallela does not squarely address this issue.

This court follows the reasoning of Judge Sweeney in Carothers v. Insurance Companies et al, 13 Misc 3d 970 (Civil Ct., Richmond Co. 2006) and adopts that court’s finding that “good cause” is not a mandatory requisite to ordering discovery. In Carothers, supra , Judge Sweeney first noted that the regulation interpreted by the Mallela court – 11 NYCRR 65-3.2

(c) – “demands that the carriers delay payment of claims to pursue investigations solely for good cause.” Insurers are prohibited from demanding “verification of facts unless there are good reasons to do so” and are required to request verification of facts “as expeditiously as [*3]possible.” Judge Sweeney then found that the “investigations the Court was discussing in Mallela are those conducted by insurers during the claims process in accordance with their entitlement under the regulatory scheme to seek verification of claims (11 NYCRR part 65) and not those conducted by litigants during the discovery process” 13 Misc 3d at 972.

However, Judge Sweeney then noted that the entire discussion of good cause in Mallela was non-binding dicta since the only question that the Mallela court agreed to answer upon certification was whether “a medical corporation that was fraudulently incorporated” was entitled to be reimbursed by insurers for medical services rendered by licensed medical practitioners” Id at 973 citing 4 NY3d at 320.

Article 31 of the CPLR governs discovery actions before the civil court, and its disclosure provisions simply do not condition discovery upon a showing of “good cause”.^[FN1] Judge Sweeney found that the guiding principle behind article 31 of the CPLR was 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. 13 Misc 3d at 973 citing Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 (1968). See also, Midwood Acupuncture P.C. v. State Farm Mutual, 14 Misc 3d 131A, 836 NYS2d 486 ( App. Term, 2d Dept. 2007); Midborough Acupuncture P.C. v. State Farm Ins. Co., 13 Misc 3d 58 (App. Term, 2d Dept. 2006) (both applying the material and necessary standard).

Furthermore, since the “defense of fraudulent incorporation is a complete defense to a claim for no-fault benefits, one that is not subject to the rules of preclusion,” it appears that the bar against which to measure whether a defendant has shown that its discovery requests on the issue of fraudulent incorporation are “material and necessary” is quite low. Id at 975. See Lexington Acupuncture, P.C. v. State Farm Insurance Co., 12 Misc 3d 90, 820 NYS2d 385 ( App. Term, 2d Dept. 2006); A.B. Medical Services PLLC v. Prudential Propr. & Cas. Co., 11 Misc 3d 137[A], 816 NYS2d 693 (App. Term 2d & 11th Jud. Dists. 2006). See also, Midborough Acupuncture PC v. State Farm Ins Co. Supra 13 Misc 3d at 58 (defendant’s papers establish that defendant’s discovery requests concerning whether plaintiff was fraudulently incorporated are material and necessary).

However, in the end, “the scope of discovery is not unlimited” and is left to the broad discretion of the trial court, which must assess the request on a case by case basis taking into consideration the “intrusiveness of the discovery device and the merits, or lack thereof, of the claim” 13 Misc 3d at 974 citing Greater NY Mutual Ins. Co. v. Lancer Ins. Co., 203 AD2d 515, 517 (2d Dept. 1994). Since the amounts in dispute in most no- fault claims are small, the court should not “hesitate to exercise its protective powers under CPLR §313(a) so as to curtail discovery where it may become an unreasonable annoyance and tend[s] to harass and overburden the other party”, Conrad v. Park, 204 AD2d 1011, 1012 ( 1994), or “to prevent the proverbial [*4]fishing expedition” Id citing Auerbach v. Klein, 30 AD3d 451, 452 (2d Dept. 2006); Lattire v. Smith, 304 AD2d 534, 536 (2d Dept. 2003). To this end, Judge Sweeney found that the primary tool to be used by the court to control and supervise the scope of discovery was the protective order pursuant to CPLR §3103(a). Id at 974.

This court is not convinced that different standards should govern the verification requests made by an insurance company during its investigatory stage, as opposed to discovery requests made by counsel for an insurance company during litigation for Mallela type documents. As set forth above, the scope of verification requests was not at issue in Mallela. Application of a higher standard for verification requests does not make sense since an insurance company should be able to ascertain as expeditiously as possible whether a medical provider is fraudulently incorporated under the No- Fault Law. However, since the Court of Appeals did find that the regulations preclude insurance carriers from delaying payment of claims unless they can show “good cause,” which demands a demonstration of behavior tantamount to fraud, this court must abide by the distinction.

The verification request for corporate documents does not contain any assertion that plaintiff Cambridge Medical engaged in any behavior that would cause one to suspect that it has been fraudulently incorporated. (See Exhibit C annexed to motion). As such, plaintiff need not further respond to the verification requests and this court denies the motion for summary judgment.

Defendant also fails to offer any justification for its request for Mallela type documents in its subsequent discovery requests. Its answer is void of any affirmative defense that defendant has reason to believe that the plaintiff may be fraudulently incorporated. However, in light of the broad latitude afforded to the courts in this department to grant Mallela type discovery requests, this court, upon conducting a balancing test, directs that plaintiff produce: the names, addresses and birth dates of all directors, officers, shareholders and owners listed on the stock certificate for plaintiff’s facility at the times services were rendered. Pursuant to CPLR §3103 (a) , this court issues a protective order limiting discovery to the aforementioned items, as the remainder of the bill of particulars ask for information that is either within the defendant’s knowledge or is unduly burdensome, irrelevant or immaterial.

For the above reasons, defendant’s motions to dismiss and/or summary judgment are denied. Given this ruling, this court need not consider plaintiff’s allegations with regard to the admissibility of the verification forms. It does appear, however, that the affidavit of mailing does allege personal knowledge of the mailing procedures and hence comports with the instructions set forth in Delta Diagnostic Radiology, P.C. a/a/o Lidaine Philogene v. Chubb Group of Insurance,17Misc 3d 16 (2007)..

This constitutes the decision and order of the court.

Dated: March 21, 2008___________________________

Staten Island, NYHON. KATHERINE A. LEVINE

Judge, Civil Court

Appearances

Counsel for Plaintiff:

Colleen Terry, Esq.

Baker, Sanders Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799

Counsel for Defendant:

Lindsay Alexander, Esq.

Epstein & McDonald

One Whitehall Street, 13th Floor

New York, NY 10004-2109

212-248-9100

Footnotes

Footnote 1:In a footnote Judge Sweeney noted that although a showing of good cause is not a mandatory prerequisite to discovery, good cause is a factor that “might be considered” in determining the permissible scope of discovery

Civil Court of the City of New York, Queens County

37719 QCV2007

Attorneys for plaintiff:

Baker, Sanders, Barshay, Grossman, Fass,

Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

( By: Todd Muhlstock, Esq.)

Attorneys for defendant:

Nicolini, Paradise, Ferretti & Sabella

114 Old Country Road, Ste. 500

Mineola, NY 11501

( By: Mitchell Lustig, Esq.)

William A. Viscovich, J.

Plaintiff health care provider brought the within No-Fault action against defendant insurer to recover for services rendered on August 15, 2002 to the insured, Jose Rodriguez, as assignor, relating to injuries allegedly arising out of a motor vehicle accident involving a vehicle owned and operated by Rodriguez on July 31, 2002. The parties stipulated as to the timely and proper submission by plaintiff to defendant of the underlying NF-3 proof of claim, that said claim is unpaid and as to the assignment of benefits from Rodriguez to plaintiff. Hence, plaintiff’s prima facie case was proven and the plaintiff rested.While acknowledging that there was no timely denial in this matter, defendant asserted the affirmative defense of lack of coverage, premised on its contention that the alleged loss did not arise out of a covered accident. Instead, the defendant premises its defense upon the argument that the accident in question was a [*2]staged, intentional collision. A staged, deliberate collision is not a covered accident under no-fault (see Liberty Mutual Insurance Company -v- Goddard, 29 AD 3rd 698 [ 2nd Dept. 2006]; Eagle Insurance Company -v- Davis, 22 AD 3rd 846 [ 2nd Dept. 2005]; State Farm Mutual Automobile Insurance Company -v- Laguerre, 305 AD 2nd 490 [ 2nd Dept. 2003]). Moreover, the Appellate Division, Second Department has held that the basic issue in such case is whether the loss arose from a deliberate occurrence outside the scope of coverage. (GEICO -v- Shaulskaya, 302 AD 2nd 522 [ 2nd Dept. 2003]; see also Fair Price Medical Supply v. Travelers Indemnity Company, 42 AD3rd 277 [ 2nd Dept. 2007]. As such, defendant would not be bound by the 30 day rule for issuance of denials normally mandated by Insurance Law § 5106(a) and the applicable No-fault regulations (Central General Hospital -v- Chubb Group of Insurance Companies, 90 NY 2nd 195 [1997]).

In support of its affirmative defense, the defendant called as witnesses both the assignor, Jose Rodriguez, and an investigator in its Special Investigations Unit.

The investigator testified that he had only reviewed this file for the first time a few weeks before the trial and, in fact, was not totally prepared to testify. In sum and substance, his investigation consisted of running a prior claim history on Mr. Rodriguez, but he could not recall the amount of dollars that Mr. Rodriguez had allegedly made claims for in the past. In addition, he testified that he himself had not made the final determination as to the possibility of fraud in this matter but instead a “committee” organized by the defendant had determined that it was not a meritorious claim.

Ironically, it was Mr. Rodriguez’s testimony itself that had the potential to prove that the accident in question had been staged. He not only testified as to the accident itself, but also as to both a previous and subsequent accident in which he was involved, occurring respectively on September 18, 2000 and August 5, 2002.

When defense counsel attempted to question Rodriguez as to the specifics of the treatment received from plaintiff provider following the underlying alleged accident of July 31, 2002, plaintiff objected, citing Fair Price, supra, arguing that evidence of non-treatment could not be used to prove a staged accident. This court reserved its decision on the objection and permitted Mr. Rodriguez to answer this line of questioning subject to a later ruling on the issue, which is the primary subject of this decision, along with other commentary.

Through the use of an official Spanish Court Interpreter, Mr. Rodriguez testified as to the accident, how it happened, where it happened and what he did thereafter, including seeking out medical attention. Perhaps because of the difficulties of translation or because of nervousness, the witness often appeared uncertain and confused about, or unable to recall, the exact date and place of his visits to the plaintiff. Mr. Rodriguez was clear about one thing, however- he never saw a nurse or doctor and never received any medical treatment whatsoever. All he could recall was going to a doctor’s office, having the staff fill out some forms based upon an accident report that he had provided to them and then leaving because he did not think the doctor would help him since he had no money. Mr. Rodriguez was adamant that he received no care or treatment and that all he did was go home and take some Advil.

As to the substance of the plaintiff’s objection to Mr. Rodriguez’s testimony regarding a lack of treatment, the court overrules plaintiff’s objection and allows the [*3]testimony as to non-treatment to be used by the defense. The Fair Price decision, according to the plaintiff, stands for the proposition that in a case where the fraud alleged by the defendant insurer pertains to the lack of services billed for (or more specifically in the Fair Price case- the failure to provide medical supplies billed for), such fraud is “not related to the existence of coverage in the first instance” ( 42 AD 3rd, at 284) and, thus, is not an affirmative Chubb defense.

This court, however, has no intention whatsoever of determining if plaintiff is entitled to recover no-fault benefits based on the extent to which the claimed medical services were actually provided. The court agrees with the plaintiff and recognizes that, pursuant to Fair Price, the extent to which the medical services billed for in this action were actually rendered is not the ultimate issue for the court to decide – to make it so would constitute a total disregard for the unequivocal appellate law that controls this issue. Moreover, as both parties have stipulated to plaintiff’s prima facie case, plaintiff has been deemed to have met its burden as to the medical necessity of the services rendered- which burden defendant has elected neither to rebut by way of any requisite timely denial nor by the specific affirmative defense asserted. As such, this court is bound by same, notwithstanding the assignor’s testimony which is extremely credible as to the possibility that the claimed services were never provided.

Unfortunately, the only issue which this court may address under Fair Price is whether there was a lack of coverage as contended by defendant on the basis that the alleged July 31, 2002 accident was ” staged”. Any testimony by Rodriguez regarding his treatment or lack thereof is being used by the court solely as evidence as to whether the loss in question resulted from an actual “covered” accident or arose from a staged collision. Any evidence that Mr. Rodriguez was not treated as claimed by the plaintiff provider or was treated to a lesser extent than claimed, has relevance only to the extent that common sense dictates that it is less likely that the participants in such a “staged” collision would actually receive treatment than in a true accident. It also follows that the alleged victim of a “staged” accident would be less likely to actually accept the risk of real injury arising from an unnecessary course of treatment (Keep in mind that this court does concede that a real injury may arise from a staged accident, but does not believe this to be the case herein).

Given the weakness of the SIU investigator’s testimony, however, the testimony of Mr. Rodriguez as to a lack of treatment alone is not enough for defendant to meet its burden in rebutting plaintiff’s prima facie case. As one court has noted, ” [W]hile some intentional collisions are the products of insurance fraud schemes, others are not. In all such cases, it is the deliberate, non-accidental character of the incident that makes it ineligible for No-Fault coverage.”(V.S. Medical Services, P.C. -v- Allstate Insurance Company,11 Misc 3rd 334, at 338 [ Civil Court, City of New York, Kings Co. 2006]; see, also Universal Open MRI of the Bronx ,P.C. -v- State Farm Mutual Automobile Insurance, 12 Misc 3rd 1151(A) [ Civil Court, City of New York, Kings Co. 2006]). Therefore, defendant’s burden of proof is a preponderance of the credible evidence, which has not been established.

What distresses the court is that while the defendant was not able to meet its burden of proof as to a “staged accident”, there was credible evidence of provider fraud. While a full trial on that issue may reveal that there was no fraud and that services were [*4]in fact rendered. the holding in Fair Price assures that neither the court nor the defendant are able to delve further into that issue. The end result is that this court is put in the potential position of having to make an award to a possibly unethical provider.

This is exactly the concern expressed by Justice Joseph Golia in his dissent in the Appellate Term rendering of Fair Price Medical Supply Corp. a/a/o Nivelo v. Travelers Indemnity Company, 9 Misc 3rd 76 [ App. Term, 2nd & 11th Jud. Dists. 2005], in which the majority decision was upheld by the Appellate Division in the Fair Price decision that controls herein. Like Justice Golia, this court is “under the firm and unshakable belief that neither the Legislature nor the Insurance Department ever intended for an insurance carrier, or anyone else for that matter, to be forced to pay for medical equipment [or in this case, medical treatment] that was never provided “(Fair Price, supra, dissent at 82). But, alas, that is the potential outcome all but acknowledged by both the Appellate Term and Appellate Division Fair Price holdings.

As such, this court, as constrained by higher authority, regretfully awards judgment to the plaintiff in the sum of $ 899.43, plus statutory interest, statutory attorneys fees, costs and disbursements.

The foregoing constitutes the decision and order of this court.

_____March 19, 2008___________________________________DateWilliam A. Viscovich

Judge, Civil Court

Civil Court of the City of New York, Richmond County

25573/06

Counsel for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-2320

Counsel for Defendant:

Teresa M. Spina, Esq.

88 Froelich Farm Blvd.

Suite 202

Woodbury, NY 11797

516-682-7274

Katherine A. Levine, J.

Plaintiff Cambridge Medical P.C. (“plaintiff”), a medical services provider, seeks to recover $1,617.69 for the EMG/NCV it conducted upon the assignor Webster Simmons (“Simmons” or “claimant”) following injuries that the claimant sustained in an automobile accident. Defendant Government Employees Insurance Company (“defendant” or “Geico”) claims that the tests were medically unnecessary. At the trial held on January 23, 2008, the parties stipulated to plaintiff’s prima facie case and defendant’s timely denial of the claim. [*2]Therefore, the only issue presented to the court was whether the EMG/NCV conducted on October 5, 2006 was medically necessary.

The medical records put into evidence by plaintiff reveal that claimant had appeared before Dr. Anand, a doctor of physical medicine and rehabilitation associated with plaintiff, on both September 19 and October 5, 2006 wherein he presented both times with complaints of neck pain which radiated to the left arm, and numbness and tingling to the left arm. On both occasions Dr. Anand conducted a physiatrics examination of the cervical spine which revealed muscle spasm and associated tenderness to palpation, and a Spurling’s test which was positive on the left. He found the following impressions: cervical sprain/strain; neck and back pain, spasm and r/o cervical radiculopathy – a nerve root problem at the neck with pain going down the arm (Plaintiff s 2). On September 19th Dr. Anand did not recommend that the patient undergo an electro diagnostic evaluation in order to rule out radiculopathy and/or other peripheral nerve damage. However, if the patient’s condition failed to improve with conservative management, reevaluation would be considered. Since September 5, 2006 the claimant had been undergoing physical therapy five times a week consisting of massage, joint mobilization, therapeutic exercise, ultrasound, hot packs and electrical stimulation.

On October 5, 2006, however, Anand recommended that the claimant undergo an electro diagnostic evaluation, including an electromyography (“EMG”) and nerve conduction velocity (“NCV”) of the region and bilateral upper extremities in order to rule out radiculopathy and/or other peripheral nerve damage. The impression of the electro diagnostic study, conducted on October 5, 2006, revealed evidence of C5-C6 radiculopathy on the left and active denervation in the left C5-C6 innervated musculature and moderate carpal tunnel syndrome affecting sensory and motor components. Dr. Anand recommended continued chiropractic care for the involved spinal areas.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U; 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 N.Y.S., 2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004). Defendant thus bears “both the burden of production and the burden of persuasion with respect to the medical necessity of the treatment or testing for which payment is sought.” See, Bajaj v. Progressive Ins. Co., 14 Misc 3d 1202(A) (N.Y.C. Civ. Ct. 2006). The quantum of proof necessary to meet defendant’s burden, at the bare minimum, is to “establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services.” Id. See also, A.B. Medical Services, supra .

Defendant presented the testimony of Dr. Joseph C. Cole who is board certified in physical medicine and rehabilitation. Dr. Cole conducted a peer review by reviewing a number [*3]of medical records or reports as listed in his peer review letter (defendant’s 2). Dr. Cole first described the EMG test which consists of putting a subcutaneous electrode or needle into the skin and recording abnormal electrical activity of the muscles and nerves. The NCV consists of stimulating a part of the body to measure the distance and velocity.

Dr. Cole stated in his peer review letter that it was the “standard of care” to order electro diagnostic testing only when the results of such test would benefit the patient more so than a detailed history and physical exam would. He also testified that the American Association of Electro Diagnostic Medicine (“AAEM”) guidelines reflect that EMG/NCV testing should only be used as an extension of a detailed history and physical examination, and only when the “results of the test would be expected to affect treatment” (Tr, 5).

Dr. Cole opined that the EMG/NCV test was not medically necessary because based on his review of the records he could not discern, “regardless of the results of the test”, how the test would have benefitted the patient any more so than a detailed patient history and physical examination would have (Tr. 4).He found that the history and physical examination findings did not substantiate the performance of such tests and would not be necessary prior to the continuation of conservative physical therapy or chiropractic care. He also opined that a physical exam of the muscles to see if there were spasms and a neurological exam would have benefitted the claimant as much as the EMG/NCV.

Dr. Cole also disagreed with the use of EMG/NCV testing to rule out radiculopathy since its limitations in evaluating this condition were “well outlined in the literature”. He stated that the AAEM minimonograph No.32 ( not submitted into evidence) reflects that EMG/NCV testing is not “the test of choice” as a screening tool for radiculopathy since it can’t be used to exclude radiculopathy even if there is a finding of normal. Furthermore, “cervical radiculopathy is diagnosed everyday in medicine with an EMG”. (Tr. 7)

Dr. Cole also acknowledged that Dr. Anand did not initially request an electro diagnostic test as he wanted to see if the patient would improve with conservative care, i.e. physical therapy and chiropractic care. He also acknowledged that on October 5, 2006 the claimant still was complaining of pain to the arm, weakness at the biceps and neck pain with radiation ideation and that the Spurling test was positive. (Tr.10). Additionally, there was a decreased range of motion of the cervical spine between the two reports so that the patient had not improved at all.

Dr. Cole admitted that the function of an electro diagnostic exam was to localize nerve tensions as accurately as possible and that the EMG/NCV was the “gold standard” in that (Tr. 11). He also agreed that establishing a specific diagnosis is important in the effective management of an individual who presents with a complaint of lower back pain and that an individualized electro diagnostic study was an extension of a detailed history and physical exam and could be useful and important in the proper evaluation of an individual with back pain. He stated that an EMG/NCV could help localize nerve root lesions as could a physical examination. [*4]Dr. Cole agreed with the statement in a 1999 AAEM article – chapter 9 “Practice Parameters for Needle Electromyographic Evaluation” (plaintiff’s 3) which noted that “a needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.” This article also stated that “(b)ased on a critical review of the literature, electro diagnostic evaluation is found to be moderately sensitive and highly specific in establishing a diagnosis of cervical radiculopathy.”

The court then asked what it believed to be the crux of the issue – why would an expert conclude that the electro diagnostic study would be of no benefit to the plaintiff when there had been no subsiding of the pain over time and why would the test not assist the doctors in diagnosing why the pain still existed (Tr. 16). Dr. Cole responded that as of September 19th the patient had been diagnosed with radiculopathy and that “this diagnosis is made everyday without EMG” and that in this case the EMG would not add to or enhance the care.” (Tr. 16). The doctor then confirmed that regardless of the results of the test, there would be no change in treatment (Tr. 17).

This court finds that the defendant’s proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. Fatally missing from the doctor’s testimony is any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom. In the leading case of Services v. Travelers Indemnity, Citywide Social Work & Psychological, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004), Justice Battaglia succinctly stated:

“A no-fault insurer defending a denial of first-party benefits on the ground that the billed-for-services were not medically necessary’ must at least show that the services were inconsistent with generally accepted medical/professional practice. The opinion of the insurers’s expert, standing alone, is insufficient to carry the burden of proving that the services were not medically necessary”.

See , Acupuncture Prime Care v. State Farm Mutual Auto, supra .A generally accepted medical/professional practice has been defined as “that range of practice that the professional will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.” 3 Misc 3d at 616.; A.B. Medical Services , P.L.L.C., supra .

In order to find that a treatment or service is not medically necessary, the defendant must show by medical evidence “that the treatment or services would be ineffective or that the insurer’s preferred health care treatment or lack of treatment would lead to an equally good outcome.” Fifth Avenue Pain Control Center v. Allstate Insurance Co.,196 Misc 2d 801, 807-08 (Civil Ct. Queens Co. 2003). The insurer’s expert’s reliance solely on his peer review report will be insufficient to disprove medical necessity. Id, See, A.R. Medical Art, P.C. v. State Farm Mutual Auto, 11 Misc 3d 1075A, 815 NYS2d 493 (Civil Ct., Kings Co. 2006).

In fact, an AAEM publication issued one year after the AAEM minimonograph #

32 cited by Dr. Cole is diametrically opposed to Cole ‘s position that the electro diagnostic test is [*5]not medically necessary since it states that a ” (a) needle EMG is widely regarded as the technique of choice in the diagnostic evaluation of cervical radiculopathy.” Dr. Cole’s testimony that the test could serve no purpose is belied by the fact that the treating physician did initially recommend conservative management of the claimant’s condition by continuing with a regimen of physical therapy. The treating physician also performed physical exams on two occasions before ordering the test. It was only after the claimant’s injuries did not improve over a span of over a month that Dr. Anand recommended that the insured undergo electro diagnosis for the purpose of ruling out radiculopathy or other nerve damage. In fact, Dr. Cole admitted that an individualized electro diagnostic study was an extension of a detailed history and physical exam and that the symptoms that the insured was exhibiting could be indicative of conditions other than radiculopathy, for example, carpel tunnel syndrome.

In a case somewhat analogous to the instant matter, Dr. Cole offered similar testimony that the EMG/NCV test was not medically necessary since the patient was improving and the physical examination and history could readily determine that the assignor was suffering from radiculopathy, thus making the need for the testing redundant. A.R. Medical Art, P.C. v. State Farm Mutual, supra . There, as in the instant matter, the plaintiff offered no testimony to rebut Dr. Cole but rather the parties stipulated into evidence the letter of medical necessity for the NCV/EMG from a doctor employed by the assignee’s medical office. The court noted that the positions between the treating physician and Dr. Cole were contradictory and that the assignee’s doctor had used the electro diagnostic testing in light of the patient’s complaints to make an exact diagnosis, locate a possible lesion, determine the extent of injury and exclude possible conditions. The court ruled that: “in the face of a course of treatment that has not been shown to have no medical purpose or performed towards no medical objective, this Court is not prepared to second guess a treating doctor who decides that a medical test is necessary for his/her medical diagnosis and treatment.”

This ruling applies with even greater force here where there was no evidence that the insured was improving from the conservative treatment recommended by the treating physician. Furthermore, only after two physical exams did the treating physician order the test to rule out radiculopathy.

In summary, Dr. Cole’s testimony failed to demonstrate the lack of medical necessity and judgment is rendered accordingly in favor of the plaintiff.

The foregoing constitutes the decision and order of the court.

Dated:March 5, 2008

Staten Island, NYHon. Katherine A. Levine

Judge, Civil Court

Civil Court of the City of New York, Kings County

56006/04

Plaintiff: Alan Banniettis, Esq.

2972 Avenue X

Brooklyn, NY 11235

(718) 648-8300

Defendant: Bruno Gerbino & Soriano, LLP

By: Akwei O. Acquage, Esq.

445 Broad Hollow Road

Suite 220

Melville, NY 11747

(631) 390-0010

Sylvia G. Ash, J.

Plaintiff brought this cause of action seeking recovery of first party no-fault benefits for medical services rendered to its assignors in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $4,151.98. Based on the testimony and evidence adduced at trial, the Court makes the following findings of fact and conclusions of law. [*2]

At trial, the parties stipulated to the Plaintiff’s prima facie case and the timely denial of the claim. The Defendant asserted that Plaintiff was not entitled to recover for the services rendered, specifically, the performance of EMG and NCV studies of the upper extremities.

The only issue before the Court was whether these studies were medically necessary.

At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity of the treatment or testing for which payment is sought (see Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 N.Y.S. 2d 857 [Civ. Ct. Kings Co. 2005]; Expo Medical Supplies , Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 N.Y.S. 2d 209 [Civ. Kings Co. 2006]; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 N.Y.S.2d 493 [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 N.Y.S. 2d 229 [Civ. Ct. Kings Co. 2005]).

To sustain its burden of proof, Defendant presented two witnesses, Dr. Jeffery Perry and Dr. Patrick Corcoran, whom the parties stipulated to be experts in the field of Physical Medicine and Rehabilitation & Pain Management.

Dr. Perry testified that in preparing his peer review report, he reviewed the treating physician’s report as well as the EMG and NCV reports. That it was his medical opinion that the EMG and NCV tests were not medically necessary because said tests are usually performed to (a) impact the care that the patient would receive (b) impact the results of the patient’s treatment ( c) when you are not sure of the course of treatment to take and (d) when there is a decline in the patient’s neurological performance. Dr. Perry stated that in this case, there was nothing in the patient’s records to indicate that the patient had a prior medical condition and that it was his opinion that the treating physician did not need to do the test or utilize the performance of the test to impact the care and treatment which the patient was already receiving. He further stated there was no indication that the patient had underwent radiological studies of any kind, which would have necessitated the performance of the test.

On cross examination, Dr. Perry acknowledged that a patient’s prior trauma and treatment is relevant for diagnosis and treatment and that the patient’s treating physician is always in the best position to prescribe care and treatment for the patient. However, where there is no mention of any prior trauma or medical condition, if a patient came to him with the same complaints as the patient herein, he would not have ordered the subject tests. Dr. Perry testified that as a treating physician, he has done EMGs on patients where payment had been denied based on the reviewing physician deeming the tests to be medically unnecessary. That in such cases, when necessary, he would provide additional information to the reviewing physician to explain his rationale for ordering the tests. Dr. Perry further stated that as a reviewing physician, if he gets a letter from the treating physician explaining the rationale for the tests, the vast majority of times, he would alter his opinion. [*3]In this case, Dr. Perry stated that the records he received and reviewed were sufficient for him to form a medical opinion of lack of medical necessity.

Dr. Patrick Corcoran testified that he also reviewed the treating physician medical records as well as the EMG and NCV reports. He stated that the records revealed that the patient was a 24 year old female, with no prior medical problems, who was involved in an automobile accident on January 21, 2001. That the patient’s symptoms were evidence of radiculopathy which is an indication that something is wrong with the root of the nerve. That the treating physician did not need the EMG and NCV studies to prevent an injury, to make a diagnosis or to formulate a treatment plan. That the records revealed that the treating physician had all the information needed to form a diagnosis and that the results of the electro-diagnostic studies were the same as the conclusion drawn from the patient’s physical examination.

On cross examination, in answering the question whether he inquired from the treating physician if the patient had a prior medical condition, Dr. Corcoran responded that there was no mention in the patient’s records of a prior medical condition and that there is a saying in medicine that “If you didn’t write it, you didn’t do it.” Dr. Corcoran concluded that based on the treating physician’s report and the physical examination, it was clear that the subject tests were not medically necessary. Dr. Corcoran further stated that he had sufficient information from the records provided to form a medical opinion of lack of medical necessity.

It is well settled that the function of the No-Fault Law is to expedite payment of claims (See 1973 NY Legis Ann, at 298). The Court of Appeals have found that “the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays.” (see Dermatossian v. New York City Tr. Auth., 67 NY2d 219 [1986]; Zydyk v. New York City Tr. Auth., 151 AD2d 745 [2d Dept. 1989]; Fifth Avenue Pain Control

Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 N.Y.S. 2d 748 [2003]. Upon receipt of a claim, the insurer is required by both statute and regulation to pay or deny a claim within 30 days of receipt of the claim (see NY Ins. Law §5106(a); 11 N.Y.C.R.R. §65-3.8(a)(1)). An insurer may extend this 30-day period if, within 15 business days after receipt of the claim, the insurer sends a request for verification (see 11 N.Y.C.R.R. §65-3.5(b)). The 30-day period does not begin to run until all demanded verification is received (see N.Y.C.R.R. §65-3.8(a)(1)). Where the claim asserted is for payment for medical services, and the documents requested in the verification process are the patient’s medical records, to put the onus on a Defendant to request additional verification will unnecessarily prolong the time within which a determination can be made by the insurer as to whether a claim should be paid or denied. The Defendant insurer is not obligated to seek further verification where its medical expert testified that there was sufficient information to form an opinion (see Amaze Med. Supply Inc. V. Travelers Prop. Cas. [*4]Corp., 7 Misc 3d 128[A], 2005 Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]; All County Open MRI & Diagn. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 N.Y.S. 2d 493, 2006WL 543132 (N.Y.Supp.App.Term)[2006]).)

To meet its burden, at a minimum, the Defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity of Plaintiff’s services (see CityWide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Co., 3 Misc 3d 608, 777 N.Y.S.2d 241, 2004 NY Slip Op. 24034 [Civ. Ct., Kings County 2004]; Nir v. Allstate Insurance Company, supra; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra). At trial, the defense that a claim was not medically necessary must be supported by sufficient factual evidence or proof and cannot simply be conclusory (see Williamsbridge Radiology & Open Imaging v. Travelers Indemnity Company, 14 Misc 3d 1231 (A), 2007 NY Slip Op. 50224(U)) In the case at bar, both Defendant’s medical experts were very specific and detailed in explaining the basis for their medical opinion of lack of medical necessity. Both doctors testified that their opinion was based on the information contained in the medical reports received from the Plaintiff. That there was no mention in said medical reports that the patient had any prior trauma or medical condition to warrant performance of the tests, and that they had sufficient information from the records they reviewed, to form a basis of lack of medical necessity.

The issue before this Court is whether the tests ordered were medically necessary. As stated above, the burden is on the Defendant to establish that the tests in question were not medically necessary. This determination is made after a review of the patient’s medical records by the Defendant’s reviewing medical expert. It is therefore important that the patient’s entire medical records be submitted for review. In most cases, the Defendant’s medical expert do not examine or have any personal contact with the patient. The opinion contained in the Defendant’s medical expert’s peer review report is based primarily on a review of the patient’s medical records received from the Plaintiff. The Plaintiff is aware that the records submitted to the Defendant’s medical expert would be used as the basis for determining whether the tests ordered were medically necessary. Therefore, it is incumbent on the Plaintiff to submit the patient’s entire records including the patient’s medical history and all ancillary information used by the treating physician to make the determination that the tests ordered are medically necessary for the treatment and care of the patient.

Plaintiff argues that both Defendant’s medical experts acknowledged that a patient’s medical history would impact his or her care and treatment. That Defendant’s medical experts should have requested additional information from the Plaintiff to ascertain whether the patient had a history of prior trauma or medical condition. That if Defendant’s medical experts had information on the patient’s medical history, their opinion would have been different. The Court finds that the Defendant should not have to question whether there are additional records or information of the patient that would assist the Defendant in forming a medical opinion as to whether the tests performed were medically necessary. That the Defendant should not have to question whether the information received are the complete records of the patient in question. [*5]

The Court notes that contrary to the Plaintiff’s contention, this is not a case where the reviewing doctors considered the information in their possession insufficient to formulate a medical necessity determination (see Amaze Medical Supply Inc. v Allstate Insurance Co., 12 Misc 3d 142(A), 824 N.Y.S. 2d 760; Hempstead Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A), 824 N.Y.S.2d 763, 2006 WL 1865021)). On the contrary, it is the Defendant’s contention that the medical records received contained sufficient information to enable them to form a medical opinion on the issue at bar. It is also Defendant’s contention that the fact that there was no mention in said records of the patient’s medical history, established that either the patient did not have a prior medical history or that said history was not a factor that was considered in determining the patient’s treatment and diagnosis. The Court credits Defendant’s testimony and finds that Plaintiff’s rationale is inconsistent with the legislative intent that no-fault claims be expeditiously paid.

Plaintiff presented no witnesses at trial. Therefore, based on the unrebutted testimony of Defendant’s medical experts and the peer review report, it is this Court’s finding that Defendant has met its burden of establishing lack of medical necessity. Where the Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to the Plaintiff who must then present its own evidence of medical necessity (see Prince Richardson on Evidence §3-104, 3-202 [Farrell 11th ed]; Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231 (A) [2007]). By failing to produce any witness(es) at trial, Plaintiff has failed to meet its burden.

Accordingly, the Plaintiff’s complaint is hereby dismissed. This constitute the Decision and Order of the Court.

February 25, 2008__________________________

SYLVIA G. ASH, J.C.C.

Civil Court of the City of New York, New York County

015066/2007

The appearances of counsel are:

Joaquin J. Lopez, Esq.

Attorney for plaintiff

(516) 741-4799

William R. Larkin, Esq.

Attorney for defendant

(212) 629-9690

Anil C. Singh, J.

Plaintiff medical provider issued bills to defendant insurance company seeking reimbursement under the No-Fault Law for services rendered to plaintiff’s assignor, Ali Sardar, who was allegedly injured in an automobile accident. The claim was denied, and plaintiff seeks recovery on these bills.

Defendant moves for moves for summary judgment dismissing the complaint without prejudice on the ground that the assignor is a taxicab driver who was injured while driving a taxicab. Accordingly, there is an issue as to whether Worker’s Compensation benefits are available which must be determined before the Workers’ Compensation Board.

Plaintiff opposes the motion and cross-moves for summary judgment. It urges that the elements of the prima facia case are not in dispute. Defendant admits that it received plaintiff’s claim and did not make payment pursuant to the thirty-day rule. It opposes the motion, arguing that defendant has failed to submit evidence that the assignor was employed at the time of the accident.

Defendant relies on two documents in support of its position that Mr. Sardar was [*2]employed at the time of the accident. The first is the application for no-fault benefits (the “NF-2”) filled out on behalf of Mr. Sardar. The application is signed by Mr. Sardar. Question 16 states as follows: “At the time of your accident were you in the course of your employment.” This question is answered “Yes.”

The second document is the MV-104 police accident report filled out by Officer Balloin describing what occurred at the time of the accident. The report states that the Sardar vehicle is a taxi.

Plaintiff urges that neither document is admissible. Defendant has failed to lay a foundation establishing that the NF-2, which was prepared by another entity, is a business record of defendant. Further, the information contained in the police report is inadmissable hearsay.

I disagree. CPLR 4518 is an exception to the hearsay rule and allows records to come into evidence provided it can be established that the writing was made in the regular course of business; it was the regular course of business to make the writing; and the writing was made at or about the time of the transaction. The rule is premised on the notion that routinely gathered information will be trustworthy and that the maker is under an obligation to record accurate information (People v. Kennedy, 68 NY2d 569 [1986]).

Records of third parties may be received in evidence when a company relies on those records in conducting its business (People v. Di Salvo, 284 AD2d 547 [2d Dept. 2001]). Records of third parties have been admitted where there is a business duty to give and record accurate information (Pencom Sys. v. Shapiro, 237 AD2d 144 [1st Dept. 1997]); see also People v. McKissick, 281 AD2d 212 [1st Dept. 2001]).

The NF-2 satisfies the requirements of reliability. The person completing the NF-2 has a duty to fill out the application accurately. Clearly, defendant insurance company must be able to rely on the information contained in the NF-2 in order to process the application for no-fault benefits.

The court may consider a police accident report “under the business record exception to the hearsay rule to the extent that it was based upon the personal observations of the police officer present at the scene and under a business duty to make it” (Westchester Med. Ctr. v. State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2d Dept. 2007]. The first line on the police accident report asks for the following information: “Not investigated at Scene”; and “Accident Reconstruction.” Neither box was checked. Accordingly, Police Officer Balloin’s notation that the Sardar vehicle was a “taxi” is necessarily based on his observation at the scene of the accident.

The next issue is whether defendant has submitted sufficient evidence that Mr. Sardar was employed at the time of the accident. Worker’s Compensation is primary and, where the issue of its coverage arises, it must be presented first to the Worker’s Compensation Board (Arvatz v. Empire Mut. Ins. Co., 171 AD2d 262, 268 [1st Dept. 1991]; see also Mattaldi v. Beth Israel Med. Ctr., 297 AD2d 234 [1st Dept. 2002]) (threshold question whether plaintiff was employed must be determined by the Workers’ Compensation Board). As the Court of Appeals explained:

Where the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions. The Legislature has placed the responsibility for these [*3]determinations with the Workmen’s Compensation Board and there it must remain. (O’Rourke v. Long, 41 NY2d 219, 228 [1976]).

Therefore, in this action defendant must show only that there is “potential merit” to its claim that Mr. Sardar was employed at the time of the accident so as to trigger a determination by the Workers’ Compensation Board (A.B. Med. Servs. PLLC v. American Tr. Ins. Co., 8 Misc 3d 127(A) [App. Term 2d Dept]).

The statement in the NF-2 that Mr. Sardar was employed at the time of the accident and the observation of the police officer that the vehicle was a taxi is sufficient for defendant to meet its burden. Plaintiff fails to tender any evidence as to Mr. Sardar’s employment status.

For these reasons, defendant’s motion for summary judgment is granted, and the complaint is dismissed without prejudice. Plaintiff’s cross-motion for summary judgment is denied as moot.

The clerk is directed to enter judgment accordingly.

The foregoing constitutes the decision and order of the court.

Date: February 25, 2008_____________________________

New York, New YorkAnil C. Singh

[*1]

Civil Court of the City of New York, New York County, February 20, 2008

APPEARANCES OF COUNSEL

William Larkin for defendant. Shayna E. Sacks for plaintiff.

{**19 Misc 3d at 358} OPINION OF THE COURT

Anil C. Singh, J.

{**19 Misc 3d at 359}This is an action to recover first-party no-fault benefits under an automobile insurance policy. Defendant moves for summary judgment dismissing the complaint, contending that the lawsuit is premature because plaintiff did not comply with defendant’s demands for verification and, as such, proof of claim has not been submitted to the carrier. In the alternative, defendant moves for partial summary judgment, requesting that the court issue an order: (a) establishing that the verification at issue was requested on February 21, 2007 and April 6, 2007, and (b) shifting to plaintiff the burden to establish that proper and timely verification requests were complied with. Plaintiff opposes and cross-moves for summary judgment, contending that: (a) defendant admits to plaintiff’s prima facie case, and (b) defendant did not comply with proper verification procedures.

Plaintiff commenced this action in April 2007 alleging that defendant insurer had not paid or denied its $878.67 claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), and seeking this amount plus statutory interest and attorneys’ fees.

Defendant exhibits the sworn affidavit of Edward Baillie, who is employed by defendant as a no-fault examiner. Mr. Baillie contends that he received a bill in the amount of $878.67 for services rendered to plaintiff’s assignor on January 8, 2007. Mr. Baillie does not state the date on which defendant received the bill from plaintiff. According to Mr. Baillie, he sent a verification request to the plaintiff for the initial report of the referring physician and a letter of medical necessity of the referring physician on February 21, 2007 and a follow-up request for the documents on April 6, 2007. Mr. Baillie contends that defendant never received a response to either request. He contends that he personally printed the requests for additional verification and the envelopes for mailing them, and that the verification requests were then collected by defendant’s mailroom unit.

Luis Campbell, the mailroom supervisor, states in a sworn affidavit that he has personal knowledge of defendant’s mailing procedures. Based on his familiarity with those procedures, he contends that the verification request was mailed on February 21, 2007 and the follow-up request was mailed on April 6, 2007.

Based upon the facts alleged in the affidavits, defendant raises two arguments to justify dismissing the case. The first argument is that no-fault benefits are not overdue because plaintiff did not provide the requested verification. Defendant cites 11 NYCRR 65-3.8 (a) (1), which states: “No-fault benefits are overdue{**19 Misc 3d at 360} if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all relevant information requested pursuant to section 65-3.5 of this subpart.” Defendant also cites 11 NYCRR 65-3.8 (f), which provides: “An insurer shall be entitled to receive proper proof of claim and a failure to observe any of the time frames specified in this section shall not prevent an insurer from requiring proper proof of claim.”

Defendant contends that it requested verification in the form of the initial report of the referring physician and a letter of medical necessity. It is undisputed that plaintiff failed to provide the documents requested. Moreover, defendant contends that it has no obligation to pay or deny the claim until verification is received, regardless of whether verification was requested in a timely manner. Thus, the claim must be dismissed on the basis of plaintiff’s failure to provide proof of claim.

Defendant’s second argument is that plaintiff’s cause of action for breach of contract is premature. According to defendant, plaintiff failed to comply with defendant’s demands for verification of the claim. As a result, proof of claim has allegedly not been submitted to the carrier, and the carrier has no obligation to act under the insurance policy. Without an obligation to act under the policy, there cannot be a breach.

Plaintiff responds with three arguments. First, plaintiff contends that defendant has the burden to prove that the verification requests were mailed timely but defendant has not met its burden. The affidavits of Edward Baillie and Luis Campbell do not state when defendant received the bill from plaintiff. Because the affidavits fail to state when the bill was received, it is impossible to determine whether the verification requests were sent timely.

Second, plaintiff contends that defendant was required to mail a copy of the verification requests to the patient/assignor pursuant to 11 NYCRR former 65.15 (e) (2) (now 65-3.6 [b]). However, defendant’s affidavits fail to state to whom the verification requests were sent.

Third, plaintiff contends that defendant admits to plaintiff’s prima facie case and did not comply with proper verification procedures. As a result, plaintiff is entitled to summary judgment.

It is imperative in ruling upon no-fault insurance matters not to lose sight of the fundamental goal of the regulatory scheme,{**19 Misc 3d at 361} which is “designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). As the Court of Appeals noted in Medical Socy. of State of N.Y. v Serio (100 NY2d 854, 867 [2003]), the Superintendent of Insurance, in adopting revised Regulation 68 (repealing and replacing 11 NYCRR part 65), determined that these regulations were “the most effective means of advancing the legislative intent of providing prompt payment of [no-fault] benefits as the loss is incurred, while reducing rampant abuse.” Accordingly, this court’s duty is to interpret and apply the no-fault regulations in a consistent manner leading to the prompt payment of valid, documented claims.

In the instant matter, defendant suggests that an insurer is entitled to receive verification of a claim even if the request for such verification is untimely. We decline to adopt defendant’s proposed interpretation of 11 NYCRR 65-3.8 (f) because it conflicts with the basic purpose of the regulatory scheme. Rather, we interpret the language of section 65-3.8 (f) to mean only that an insurer must, within 30 calendar days after the insurer receives the initial proof of claim, either: (a) pay the claim; (b) deny the claim; or (c) make a timely request for verification. Under 11 NYCRR 65-3.8 (c), the insurer is required to either pay or deny the claim in whole or in part within 30 calendar days after proof of claim is received. In other words, section 65-3.8 (f) means simply that the 30-day rule to pay or deny a claim does not preclude an insurer from making a proper—and timely—request for verification of a claim.

We decline to adopt the defendant’s interpretation of the regulations because the suggested interpretation would render the clearly delineated time frames specified in the statute virtually meaningless. Furthermore, the proposed interpretation could lead to significant delays in the processing of claims for no-fault benefits. Such a result would clearly be at odds with the basic purpose of the regulatory scheme. Therefore, we find defendant’s contentions to be without merit.

The regulations set mandatory deadlines for verification of claims. The claims procedure for additional verification requests is set forth at 11 NYCRR 65-3.5 (b). It provides in pertinent part: “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.” The follow-up requirements are set forth at 11 NYCRR 65-3.6 (b), which states in part:{**19 Misc 3d at 362}

“Verification requests. At a minimum, if any requested verifications has [sic] not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail.”

The fact that the regulations contain specific deadlines implies that an untimely [*2]verification request does not toll the 30-day period to pay or deny a claim. In fact, the case law clearly supports such a conclusion.

“Upon receipt of a no-fault claim, the regulations shift the burden to the carrier to obtain further verification or deny or pay the claim” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 [2007]). It is well settled that an insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2d Dept 2004]).

Under 11 NYCRR 65-3.5 (a), a “timely” demand for additional verification is one made within 10 days from receipt of a completed application. The case law acknowledges that a demand for verification must be timely and, further, that a claim may be dismissed for failure to respond to a timely request. (See for example St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2d Dept 2002] [hospital failed to respond to insurer’s timely verification requests]; see also Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2d Dept 2007] [undisputed that defendant’s requests for additional information were timely].)

In the instant matter, there is sharp disagreement regarding the timeliness of the verification request. To resolve the dispute, we must look to the affidavits furnished by the defendant.

The affidavits establish the date on which the verification request was sent. However, neither affidavit states the date when defendant received the bill from plaintiff. Without this crucial piece of information, the court is unable to determine whether the verification request was timely. Accordingly, defendant has failed to make out a prima facie case for summary judgment in its favor.

We turn now to plaintiff’s cross motion for summary judgment. It is well settled that a plaintiff makes a prima facie{**19 Misc 3d at 363} showing of entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564 [2d Dept 2005]). The court may, in its discretion, rely on defendant’s documentary submissions establishing defendant’s receipt of plaintiff’s claims (Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U] [App Term, 1st Dept 2007]). Here, the affidavit of defendant’s employee, claims examiner Edward Baillie, establishes that defendant received plaintiff’s claim and, further, that defendant failed to pay or deny the claim within the statutory 30-day time frame. Furthermore, said affidavit fails to demonstrate that defendant requested verification in a timely manner. Accordingly, the defendant has not shown a triable issue of fact regarding whether payment of no-fault benefits was overdue.

For the above reasons, defendant’s motion for summary judgment is hereby denied, and plaintiff’s cross motion for summary judgment is granted.

Civil Court of the City of New York, Richmond County

023996/06

Counsel for Plaintiff:Baker, Sanders, Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799

Counsel for Defendant:Samuel G. Lesman, Esq.

Melli, Guerin & Wall, P.C.

17 Battery Place

Suite 610

New York, NY 10004

212-509-6300

Katherine A. Levine, J.

In the instant matter the assignor Maria Tavarez (“Tavarez” or “claimant”) of plaintiff American Chinese Acupuncture, P.C. (“plaintiff”), was allegedly injured in an automobile accident on or about December 21, 2003. Tavarez assigned the cost of her six sessions of acupuncture treatment, in the amount of $257.04, to plaintiff health care provider. At the trial held on January 9, 2008, the parties stipulated to plaintiff’s prima facie case and defendant’s timely denial of the claim. Therefore, the only issue presented to the court was whether the six sessions of acupuncture sessions in March 2004 were medically necessary.

A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services v. NY Central Mut. Fire Ins. Co., 7 Misc 3d 1018(A), 801 N.Y.S., 2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004).

The parties stipulated into evidence the verification of treatment form (“NF3”) which indicated that Tavarez’s diagnosis and concurrent conditions were pain – neck (cervicalgia) and pain – low back (lumbalgia). Defendant presented the testimony of Dr. Joseph Kalangie who is a diplomate and board certified in physical medicine and rehabilitation. Dr. Kalangie performed an independent medical examination (“IME”) upon Tavarez approximately six weeks after her accident. The claimant informed him that several days after the accident she sought medical treatment due to headaches, pain in the neck, lower back and both shoulders. She also indicated she was placed on a regimen of physical therapy and other treatments, including acupuncture four times a week. She indicated that she currently had headaches, pain in the [*2]lower back and pain in both shoulders.

Dr. Kalangie’s IME of Tavarez revealed that the cervical and lumbar strain/sprain, as well as the bilateral shoulder contusion, had resolved. Specifically, the doctor examined the cervical spine and found no sensory deficit or motor weakness of the upper extremities. There was no complaint of any radiation of pain. He also examined both shoulders and found normal rotation and no instability of the joints Finally, he examined the lumbosacral spine and found no complaints of tenderness and normal range of motion and no atrophy.

Based on his examination he opined that treatment had been reasonable, related and necessary from a physiastrist point of view and that there was no need for further chiropractic care and acupuncture treatment. Since all the alleged injuries due to the accident had been resolved, there was no need for any type of further formal treatment.

On cross examination, Dr. Kalangie stated that he was not a licensed acupuncturist and he does not perform and has no training in acupuncture. He opined that acupuncture provides relief to pain and admitted that Tavarez was complaining of pain.He did not have her medical records at the time of the exam and did not request the records even though he could have. He does, however, review other medical records when he himself is the treating physician of patients in auto accidents. 25-30% of his income is derived from peer reviews and IMEs. In 75% of the cases he does not find medical necessity.He typically spends 20-30 minutes on an IME.

In response to questions posed by the court, the doctor indicated that pain is subjective and that his findings as to the shoulders and spine were objective. He did not assess the complaints of headaches since that was outside of his realm of expertise.

Defendant contends that it has proven lack of medical necessity and it therefore is not responsible for the $257.00 charged by plaintiff. It pointed out that plaintiff offered no rebuttal. Plaintiff posits a number of grounds as to why the doctor’s testimony should not be credited, only one of which this court finds determinative: that the doctor is under an obligation to state the generally accepted medical practice and expertise in treating claimant and how plaintiff deviated from this practice.

This court finds that the defendant’s proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. Fatally missing from the doctor’s testimony is any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom. In the leading case of Services v. Travelers Indemnity, Citywide Social Work & Psychological, 3 Misc 3d 608, 609 ( Civil Ct., Kings Co. 2004), Justice Battaglia succinctly stated:

“A no-fault insurer defending a denial of first-party benefits on the

ground that the billed-for-services were not medically necessary’

must at least show that the services were inconsistent with [*3]

generally accepted medical/professional practice. The opinion

of the insurers’s expert, standing alone, is insufficient to carry the

burden of proving that the services were not medically necessary.”

See , Acupuncture Prime Care v. State Farm Mutual Auto, supra .A generally accepted medical/professional practice has been defined as “that range of practice that the professional will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling.” 3 Misc 3d at 616.; A.B. Medical Services , P.L.L.C., supra .

Although acupuncture, physical therapy, and chiropractic are distinct modalities of treatment, they could conceivably be used to treat the same condition. Rose Med. Acupuncture Servs. P.C. v. Specialized Risk Mgmt., 2004 NY Slip Op 51078U, 4 Misc 3d 1027A, 798 NYS2d 348 (City Court, Mt. Vernon, 2004). See, Universal Acupuncture Pain Services, P.C. v Lumbermens MutualCasualty Co., 195 Misc 2d 352, 758 NYS2d 795 (Civ Ct. Queens Co. 2003). Thus, where the insurer and medical provider disagree on what should be classified as concurrent care, and a denial is then issued, the dispute should be brought before a court of competent jurisdiction for final resolution on this pivotal issue (See id.).

Here, Dr. Kalangie did not posit that acupuncture and physical therapy constituted concurrent care. Nor did he even address how he would treat Tavarez’s complaints of headaches and why acupuncture could not alleviate the subjective pain that she allegedly was suffering. The conclusory opinion of Dr. Kalangie, standing alone, is insufficient to demonstrate the lack of medical necessity.

In conclusion, the court grants judgment in favor of plaintiff.

The foregoing constitutes the decision and order of the court.

Dated:February 6, 2008

Staten Island, NYHON. KATHERINE A. LEVINE

Judge, Civil Court

ASN by ________ on ____________.

A P P E A R A N C E S

Counsel for Plaintiff:Baker, Sanders, Barshay, Grossman, Fass, Muhlstock

& Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799

Counsel for Defendant:Samuel G. Lesman, Esq.

Melli, Guerin & Wall, P.C.

17 Battery Place

Suite 610

New York, NY 10004

212-509-6300

Civil Court of the City of New York, Bronx County

1741/07

Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Esqs.

Edward A. Cespedes, Esq.

of Counsel

150 Herricks Road

Mineola, New York 11501

(516) 741-4799

Defendant:

McDonnell & Adels, P.C.

Diana Leahy. Esq.

401 Franklin Avenue

Garden City, New York 11530

(516) 328-3697

Sharon A. Aarons, J.

Plaintiff commenced this action to recover no-fault first party benefits for unpaid medical services provided to Anthony Montes in the amount of $1,221.04, together with statutory interest, statutory attorney’s fees and costs and disbursements. This matter came before this Court for trial on December 7, 2007. In support of its prima facie case, plaintiff submitted a copy of its summons [*2]and complaint, a Notice to Admit and defendant’s Responses to the Notice to Admit, which were marked and entered into evidence as Court Exhibits I, II and III, respectively. Neither plaintiff nor defendant presented any witnesses nor proffered any other evidence. After review of these Court Exhibits and oral argument the Court ruled that plaintiff had not established a prima facie case and granted defendant’s motion for a directed verdict. Due to the fact that it has now become increasing common for plaintiffs seeking to recover no-fault first party benefits to attempt to establish its/their prima facie case at trial through the use of a Notice to Admit and the responses thereto, has resulted in the trial courts being divided on this issue (compare RJ Med., P.C. v. All-State Ins. Co., 15 Misc 3d 1140(A), 841 NYS2d 823 (Civ. Ct., Bronx County, 2007);PDG Psychological, P.C. v. State Farm Mut. Auto Ins. Co., 12 Misc 3d 1183(A), 824 NYS2d 766 (Civ. Ct., Kings County, 2006), with Seaside Med., P.C. v. General Assur. Co., 16 Misc 3d 758, 842 NYS2d 234 (Dist. Ct., Suffolk County, 1st Dist. 2007); New York Massage Therapy P.C. v. State Farm Mut. Ins. Co., 14 Misc 3d 1231(A), 836 NYS2d 494 (Civ. Ct., Kings County, 2006), the Court stated it would issue a formal written Decision/Order addressing the matter.

Plaintiff’s Notice to Admit (Court Exhibit II) asked the defendant to admit the following eleven items:

1. The defendant received the claims(s) for No-Fault benefits that are the subject of thisaction.

2. The defendant received the N-F-3 Verification of Treatment Form(s) that are the subjectof this action.

3. The defendant received the bill(s) that are the subject of this action.

4. The defendant received Assignment of Benefits Form(s) for the claim(s) that are thesubject of this action.

5. Annexed hereto are true and accurate copies of the plaintiff’s bill(s), claim(s) and/orN-F-3(s) referenced in 1 through 3 above, and the Assignment of Benefits formsreferenced in 4 above.

6. The defendant received the summons and complaint in this action.

7. The defendant received plaintiff’s bill(s) and/or N-F-3(s) referenced in 1 through 3 above,and the Assignment of Benefits form(s) referenced in 4 above, more than thirty daysbefore the defendant received the summons and complaint in this action.

8. The defendant has not paid the bill(s), claims(s) and/or N-F-3(s) referenced in 1 through3 above.

9. The defendant has not paid the bill(s), claims(s) and/or N-F-3(s) referenced in 1 through3 above, in full. [*3]

10. The defendant did not mail requests for verification to the plaintiff for the plaintiff’sbill(s), claims(s) and/or N-F-3(s) referenced in 1 through 3 above.

11. The defendant issued a policy of insurance covering the vehicle(s) plaintiff’s assignor(s)was/were in, or by which the assignor(s) was/were injured, at the time of the underlyingmotor vehicle accident(s).

Defendant’s verified Response to plaintiff’s Notice to Admit contained the same verbatim response to each of the eleven questions of the Notice to Admit which reads as follows:

Objection. The Notice to Admit goes to the heart of the matter being litigated and,

as such, is an improper use of a Notice to Admit. The Hawthorne Group, LLC v. RREVentures, et al., 7 AD3d 320, 324 (1st Dep’t 2004) and Sagiv v. Gamache, 26 AD3d 368, 369 (2nd Dep’t 2006); Defendant further objects as Plaintiff is asking Defendant to admit the genuineness and authenticity of any documents provided heretofore which is improper as such is exclusively within Plaintiff’s knowledge. Spawton v. James E. Strates Shows, Inc., 75 Misc 2d 813, 349 NYS2d 295 (Sup. Ct. Erie County, 1973) (emphasis added).

CPLR §3123(a) provides, inter alia, as follows:

Each of the matters of which an admission is requested shall be deemed admitted

unless within twenty days after service thereof or within such further time as the

court may allow, the party to whom the request is directed serves upon the party

requesting the admission a sworn statement either denying specifically the matters

of which an admission is requested or setting forth in detail the reasons why he

cannot truthfully either admit or deny those matters.

Here, the defendant neither admitted, denied or set forth a reason why he could not truthfully either admit or deny those matters sought in the Notice to Admit. Unlike requests for written interrogatories where a party is permitted to object and state the reason with reasonable particularity (CPLR§3133 (a)), such a procedure is not authorized with a Notice to Admit (CPLR§3123(a)). Webb v. Tire and Brake Distributor, Inc., 13 AD3d 835, 786 NYS2d 636 (3rd Dept. 2004). If a party believes that any of the requests for admissions are improper the correct procedure is seek a protective order under CPLR§3103. Kowalski v. Knox, 293 AD2d 892, 741 NYS2d 291 (3rd Dept. 2002). Otherwise, they may be deemed be admitted. Id. at 892; Tire and Brake Distributor, Inc., 13 AD3d at 838. Notwithstanding the fact that a party fails to respond to a Notice to Admit or its responses are improper, it is still the function of the court to review the propriety of the Notice to Admit and disregard same if the requests are improper. Eddyville Corp. v. Relyea, 35 AD3d 1063, 827 NYS2d 315 (3rd Dept. 2006).

The defendant herein contends that the admissions sought by plaintiff in its Notice to Admit are improper because they go to the heart of the matter being litigated. The purpose of a Notice to Admit is to obviate the necessity of producing witnesses to testify at trial pertaining to facts and/or documents where there “can be no substantial dispute at the trial and which are within the knowledge of the other party or can be ascertained by him upon reasonable inquiry.” CPLR§3123(a). An analysis of plaintiff’s Notice to Admit and relevant case law reveals that none of the individual [*4]questions for which admissions are sought rise to the level of matters that go to the “heart of the matter” and consequently the admissions sought by the plaintiff in its Notice to Admit were proper. Bajaj v. General Assurance, 2007 NY Slip Op. 27487 (App. Term, 2nd and 11th Jud. Dists.); General Assur. Co., 16 Misc 3d at 763-767; Marigliano v. State Farm Mut. Auto Ins. Co., 12 Misc 3d 1180(A), 824 NYS2d 764 (Civ. Ct., Richmond County, 2006); State Farm Mut. Ins. Co., 836 NYS2d at 494. Notwithstanding that the admissions sought by the plaintiff in its Notice to Admit were proper, the plaintiff by failing to append the documents it specifically stated were attached to its Notice to Admit, did not establish its prima facie case. State Farm Mut. Auto Ins. Co. 824 NYS2d at 764.

Parenthetically, the Court notes that the issue in no-fault health care provider case of whether use solely of a Notice to Admit and/or a defendant’s responses or lack thereto can establish a prima facie case has resulted in an apparent split of authority between the Appellate Term, 2nd and 11th Jud. Dists., and the Appellate Term, 1st Department. The Appellate Term, 2nd and 11th Jud. Dist., has unequivocally held in Bajaj that a Notice to Admit by itself is insufficient to establish a prima facie case and that a health care provider was required to tender evidentiary proof of the transaction sued upon in admissible form. However, the Appellate Term, 1st Dept., in Fair Price Med. Supply, Inc. v. St. Paul Travelers Ins. Co., 16 Misc 3d 8, 838 NYS2d 848 (2007), sustained a plaintiff’s prima facie case at trial based solely on defendant’s responses to plaintiff’s demand for verified written interrogatories. Unlike Bajaj, Fair Price did not require the submission of evidentiary proof of the transaction sued upon. Accordingly, in this department it appears, based upon Fair Price, that a plaintiff can establish solely through the use of a Notice to Admit and/or a defendant’s responses thereto a prima facie case.

CONCLUSION

For the reasons stated above, plaintiff had not established a prima facie case, defendant’s motion for a directed verdict is granted and plaintiff’s complaint is dismissed .

The foregoing constitutes the decision and Order of the Court.

Dated: January, 2008______________________________

Bronx, New YorkSharon Aarons, J.C.C.