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.

[*1]

Civil Court of the City of New York, Bronx County, December 10, 2007

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for defendant. Leon Kucherovsky, New York City (Alan Goldstein of counsel), for plaintiff.

{**18 Misc 3d at 723} OPINION OF THE COURT

Sharon Aarons, J.

Relief Requested

Defendant moves for an order, pursuant to CPLR 2221 (e), granting defendant leave to renew and ordering a new trial based upon a change in law. Defendant’s motion is granted. Written opposition was submitted. Defendant’s motion for leave to renew is granted and upon renewal this court’s decision/order, dated October 31, 2006, is vacated, and plaintiff’s motions in limine for preclusion and for a directed verdict are denied.

Procedural Background[*2]

Plaintiff assignee brought this action against defendant, the assignor’s no-fault carrier, to recover for health services rendered to the assignor on December 10, 2004 in the nature of medical equipment supplied following the motor vehicle accident on October 28, 2004. Defendant contends that the medical equipment for which the plaintiff submitted a bill seeking $1,152 was not medically necessary.

Factual Background

On October 31, 2006 the parties appeared for trial of this action. They entered into a written stipulation, in writing and on the record, that plaintiff’s submission of the bill for services, the assignment of benefits and defendant’s denial of claim form (collectively admitted as plaintiff’s exhibit 1) would meet plaintiff’s burden of proof establishing its prima facie case. The parties further stipulated the timeliness and mailing of defendant’s denial of claim form. At the trial of this action, plaintiff made a motion in limine to preclude the peer review doctor from testifying and to preclude the defendant’s defense of lack of medical necessity on the grounds that the defense of lack of medical necessity was not preserved because the defendant’s denial of claim form, while asserting the defense of lack of medical necessity, neither specified the factual basis nor the medical rationale, and a copy of the peer review was not sent to the plaintiff. The court granted the plaintiff’s motions for preclusion and for a directed verdict in favor of the plaintiff and against the defendant in the amount of $1,152 with interest from August 2, 2005. The court’s granting of plaintiff’s motions was based upon the authority of the Appellate Term, Second{**18 Misc 3d at 724} and Eleventh Judicial Districts, rendered in A.M. Med. Servs., P.C. v Allstate Ins. Co. (12 Misc 3d 144[A], 2006 NY Slip Op 51426[U], *3 [2006]), which stated that

“this court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon lack of medical necessity, the defendant is precluded from asserting said defense. In the instant case, defendant’s denial of claim forms with respect to said claims, and the accompanying explanation of benefits forms, merely advised plaintiff that the claims were denied pursuant to a peer review report and that a copy of said report would be sent to plaintiff under separate cover. Since there is no evidence that the peer review was sent to plaintiff under separate cover within the 30-day claim determination period, and the denials of claims were otherwise devoid of any factual basis for the denials, defendant is precluded from asserting lack of medical necessity as a defense to said claims and plaintiff is entitled to summary judgment upon said claims” (citations omitted).

On November 3, 2006 the defendant served upon plaintiff a notice of appeal from the court’s decision/order and filed same with the Clerk of the Court on November 17, 2006.

Discussion and Analysis

The 1999 amendment of CPLR 2221 codified the rules pertaining to reargument and [*3]renewal motions. CPLR 2221 (e) (2) makes clear that a motion to vacate or modify a prior order on the ground that there has been a change in the law that would change the prior determination is a renewal motion. While the 1999 amendment set forth a specific time frame for the making of a motion to reargue (30 days after service of a copy of the order determining the prior motion with notice of entry [CPLR 2221 (d) (3)]), a motion to renew contains no statutory time prescription. The issue of the timeliness of a motion to renew under the 1999 statutory amendment was addressed by the Appellate Division, Second Department, in Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist. (278 AD2d 364 [2000]). In Glicksman the plaintiff’s complaint was dismissed. No appeal was taken from the order/judgment of dismissal. Subsequently, there was a change in the decisional law and seven months later a renewal motion ensued{**18 Misc 3d at 725} pursuant to the then recently amended CPLR 2221 (e) (2). The motion court granted the renewal motion and the Appellate Division reversed. The Appellate Division held that there was no indication in the legislative history of any intent to change the long-standing rule regarding finality of judgments and that a motion to renew may not be made after judgment was entered and no appeal was pending. Glicksman reaffirms that the law remains unchanged and that a motion to renew based upon a change in the law must still be made while the case is sub judice, i.e., still pending in the court system. (See also Daniels v Millar El. Indus., Inc., 44 AD3d 895 [2d Dept 2007]; Matter of Eagle Ins. Co. v Persaud, 1 AD3d 356 [2d Dept 2003].) Plaintiff does not assert that the defendant was untimely in the service or filing of its notice of appeal or that defendant’s appeal was dismissed. Consequently, defendant’s motion is timely since no judgment was entered and an appeal was pending and, as such, the court retains jurisdiction to determine the instant motion.

Subsequent to the issuance of this court’s decision/order and judgment, dated October 31, 2006, the Appellate Division, Second Department, decided the case of A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (39 AD3d 778 [2007]). That Court (at 779) stated as follows:

“For the reasons set forth in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (39 AD3d 779 [2007] [decided herewith]), and New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (39 AD3d 832 [2007] [decided herewith]), we disagree with the Appellate Term’s conclusion that the defendant’s denial of claim forms were insufficient because they failed to set forth with sufficient particularity the factual basis and medical rationale upon which they were based. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided.”

The Appellate Term, First Department, concurred in A.I.D. Med. Supplies v GEICO Gen. Ins. Co. (15 Misc 3d 140[A], 2007{**18 Misc 3d at 726} NY Slip Op 51044[U] [2007], specifically citing A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co.; see also Andrew Carothers, M.D., P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 136[A], 2007 NY Slip Op 51613[U] [App Term, 2d & 11th Jud Dists 2007]; Delta [*4]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

As previously stated, prior applicable law mandated that a denial of claim based upon lack of medical necessity must set forth with sufficient particularity the factual basis and medical rationale for such denial. This could be set forth either in the denial of claim form or in a peer review report attached to the denial of claim form or sent to plaintiff within 30 days of the denial under separate cover. Since this was not done in the case at bar, this court, applying applicable law, held that the defense of lack of medical necessity was not preserved. The decisions of the appellate courts, cited above, subsequently ruled that pursuant to applicable Insurance Department regulations, upon request, an insurer is required to release a copy of the peer review report to the applicant or its attorney; that a denial based upon lack of medical necessity is not insufficient because it fails to set forth the factual basis and medical rationale; and that had it been the intent of the Insurance Department to require the factual basis and medical rationale in the denial it would have so provided. Hence, herein, the fact that the denial of claim form does not state a factual basis or a medical rationale does not invalidate the denial that was timely sent as so stipulated at trial by the plaintiff.

Accordingly, defendant’s motion must be granted.

Conclusion

Defendant’s motion for leave to renew is granted and upon renewal this court’s decision/order, dated October 31, 2006, is vacated, and plaintiff’s motions in limine for preclusion and for a directed verdict are denied. The Clerk of the Court, upon being served with a copy of this order with notice of entry is directed to place this action upon an appropriate calendar for trial and to notify the respective parties herein. Since this action is being restored to the trial calendar as a result of a change in existing law made by the Appellate Division, neither the filing of a new notice of trial nor the payment of any additional fees are required.

Civil Court of the City of New York, Kings County

073321/06

Counsel for Movant-Defendant:

Short & Billy, P.C.

217 Broadway, Suite 300

New York, NY 10007

Tel.: (212) 732-3320

Counsel for Cross-movant-Plaintiff:

Ilona Finkelshteyn, P.C.

2503 65th Street

Brooklyn, NY 11204

Tel.: (718) 382-1266

Peter Paul Sweeney, J.

Upon the foregoing papers, the motion and cross-motion are decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff Friendly Physician, P.C. moves for summary judgment and defendant Progressive Insurance Company cross-moves to compel discovery. In opposition to plaintiff’s motion, defendant argues, among other things, that plaintiff did not establish its entitlement to summary judgment inasmuch as the no-fault claim forms underlying the action were not submitted in admissible form.

To prevail on its motion, plaintiff had the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant and that payment of no-fault benefits is overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2nd Dep’t 2004]; AVA Acupuncture, P.C. v. GEICO General Ins. Co.,17 Misc 3d 41[App. Term, 2d & 11th Jud. Dists]; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128(A), 2003 NY Slip Op 51701(U), 2003 WL 23310886 [App. Term, 2d & 11th Jud Dists] ). To meet this burden, plaintiff was required to establish the admissibility of the no-fault claim forms by demonstrating that they are business records within the meaning of CPLR 4518[a] (see [*2]e.g., Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 46 [App Term, 2nd & 11th Jud Dists 2006]; Great Wall Acupuncture v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 142(A), 2007 NY Slip Op. 50364(U)[App Term 2d & 11th Jud Dists]; Bath Med. Supply, Inc. v. Allstate Ins. Co.,16 Misc 3d 135(A), 2007 NY Slip Op. 51602(U) [App Term, 2nd & 11th Jud Dists] ). To do this, plaintiff was required to submit an affidavit or other admissible proof demonstrating that the claim forms were made in the regular course of business and reflect a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business, that it was the regular course of business to make the claim forms, in other words, that they were made pursuant to established procedures for the routine, habitual, systematic making of such a record, and that the claim forms were made at the time of the acts, transactions, occurrences or events described therein, or within a reasonable time thereafter (see People v. Cratsley, 86 NY2d 81, 89 [1995]; People v. Kennedy, 68 NY2d 569, 579-580 [1986]; Williams v. Alexander, 309 NY 283, 286 [1955] ).

To lay the foundational elements through an affidavit, the affiant must aver that he or she had personal knowledge of the business practices and procedures pursuant to which the claim forms were made (see Dan Medical, P.C., 14 Misc 3d at 46, citing Hefte v. Bellin, 137 AD2d 406, 408 [1st Dep’t 1988]; Dayanim v. Unis, 171 AD2d 579 [1st Dep’t 1991]; Midborough Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132(A), 2006 NY Slip Op. 51879(U), 2006 WL 2829993 [App. Term, 2d & 11th Jud Dists]. The affidavit must also demonstrate that the preparer of the claim forms had actual knowledge of the events recorded therein or that he or she obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events to the preparer (see Capasso v. Kleen All of America, Inc., 43 AD3d 1346 [4th Dep’t 2007], citing Alexander, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C4518:1; Matter of Leon RR, 48 NY2d 117, 122-123 [1979]; see also Johnson v. Lutz 253 NY 124, 128 [1930]; Toll v. State, 32 AD2d 47, 49 [3rd Dep’t 1969] ).

Applying these principles, the court finds that the affidavit submitted by plaintiff to show that the no-fault claim forms are business records was woefully insufficient. No details were set forth in the affidavit as to how the claim forms were generated. Certainly, there was no showing that they were made in the regular course of business or that it was the regular course of plaintiff’s business to make the claim forms.

The affidavit does not indicate that the preparer of the claim forms had actual knowledge of the events recorded therein, nor does it indicate that the preparer obtained knowledge of those events from someone with actual knowledge of them and who was under a business duty to report them to the preparer.

Finally, the affidavit did not demonstrate that the affiant possessed personal knowledge of plaintiff’s office practices and procedures. The court refuses to speculate that the affiant had such knowledge simply because the identified herself as plaintiff’s billing manager.

At oral argument, plaintiff’s counsel argued that the holding in Infinity Health Products, Ltd. v. New York Central Mutual Fire Insurance Company, 17 Misc 3d 130(A), 2007 NY Slip Op. 51984(U) [App Term, 2nd & 11th Jud Dists] supports its position that the affidavit at issue is sufficient to demonstrate the admissibility of the no-fault claim forms. In Infinity Health [*3]Products, Ltd., supra., the Appellate Term affirmed an order which awarded summary judgment to a plaintiff medical supplies provider, stating: “[f]or the reasons stated in Dan Medical, P.C. v. New York Central Insurance Co. ( Misc 3d , 2007 NY Slip Op [App Term, 2nd & 11th Jud Dists], decided herewith, the judgment is affirmed (emphasis added).” Plaintiff’s counsel maintained that the affidavit at issue in Infinity Health Products, Ltd. was virtually identical to the affidavit at issue here.

Whether the affidavit in Infinity Health Products, Ltd. is virtually identical to the one now before the court is of no moment. In the Dan Medical, P.C. case ^[FN1] cited by the court in Infinity Health Products, Ltd., the court stated: “[i]nasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto (id.).” Thus,it is apparent that in both Infinity Health Products, Ltd., supra. and Dan Medical, P.C., supra, the court never passed on whether the plaintiff established its prima facie entitlement to summary judgment. Thus, Infinity Health Products, Ltd. can not be viewed as appellate approval for the proposition that the affidavit before the court is sufficient to establish the admissibility of the no-fault claim forms.

In sum, inasmuch as plaintiff did not demonstrate that the no-fault claim forms annexed to the motion were business records within the meaning of CPLR 4518[a], plaintiff did not establish its entitlement to summary judgment. Accordingly, the motion must be denied regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ).

For the reasons stated above, it is hereby

ORDERED that plaintiff’s motion for summary judgment is DENIED; and it is further

ORDERED that defendant’s cross-motion, which plaintiff did not oppose, is GRANTED solely to the extent that plaintiff is directed to serve answers to defendant’s interrogatories within 45 days of the service of this order with notice of entry.

This constitutes the decision and order of the court.

Dated: December 3, 2007____________________________________

PETER P. SWEENEY

Civil Court Judge

Footnotes

Footnote 1:The Dan Medical, P.C. case cited in Infinity Health Products, Ltd. should not be confused with the seminal case of Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44, 829 N.Y.S.2d 404 [App Term, 2nd & 11th Jud Dists 2006] which held that a plaintiff in an action to recover no-fault benefits must submit the underlying no-fault claim forms in admissible form to prevail on a motion for summary judgment.

Civil Court of the City of New York, Kings County

075350/05

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignors. 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 $1,791.00. Based on the testimony and evidence adduced at trial, this Court renders the following findings of fact and conclusions of law.

The parties stipulated to Plaintiff’s prima facie case and Defendant’s timely denial of the claim. The only issue to be decided by the Court is whether the magnetic resonance imaging (MRI) tests of Plaintiff’s assignor’s cervical and lumbar spine were medically necessary. Defendant bore the burden of proof on this issue. Therefore, Defendant had the burden to establish by admissible evidence its belief that the services rendered were not medically necessary (11 NYCRR 65.15). If the Defendant sustains this burden, the burden of persuasion shifts back to Plaintiff to submit rebuttal evidence that the services rendered were medically necessary (see, A.B. Medical Services, PLLC v. State Farm Mut. Auto. Ins., Co., 7 Misc 3d 822, 795 N.Y.S. 2d 843; V.S. Medical Services, P.C. v. Allstate Insurance Co., 11 Misc 3d 334; PDG Psychological, P.C., v. State Farm Insurance Co., 12 Misc 3d 1183(A); Citywide Social Work & Psy. Serv. V. Travelers Indem. Co., 3 Misc 3d 608 [Civ. Ct. Kings Co., 2004]; Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 (U), 2003 WL 22471156 [Civ. Ct., Kings Co., 2003] Delta Medical Supplies, Inc. v. NY Central Mutual Insurance Co., 14 Misc 3d 1231(A), 836 N.Y.S.2d 492, 2007 NY Slip Op. 50241(U); Williamsbridge Radiology & Open Imagining v. Travelers Indem. Co., 14 Misc 3d 1231(A), 836 N.Y.S. 2d 496, 2007 NY Slip Op. 50224(U)).

At trial, Defendant called Dr. Michael N. Berke, a Chiropractor, as its chief and primary witness. Dr. Berke testified that based on his examination of the assignor and review of the medical records he found no objective findings of spasm, no positive orthopedic tests or radicular complaints to justify the MRIs. The Plaintiff called Dr. Michael Walsh, a Neurologist, as its rebuttal witness. Dr. Walsh testified that he reviewed the treating physician’s medical report and that based on the assignor’s complaints, the MRIs were medically necessary. [*2]

The parties have submitted post trial memorandums. Defendant argued that Dr. Berke examined the assignor one day after the cervical MRI and three days prior to the lumbar MRI; that the assignor had no complaints of radiating pain at that examination; that based on Dr. Berke’s examination and his review of the medical report of the treating physician, Dr. Abbot, the MRIs were not medically necessary at the time when they were performed. Dr. Berke stated that his opinion is based on what is reasonable and customary in the medical field as well as his twenty (20) years of practice as a Chiropractor.

The Plaintiff argued that the assignor’s complaints included radiated

pain from the neck to the head, to the arms and the left lower extremity. ` Dr. Walsh testified that the Spurling test was positive, that there was restricted range of motion and spasm in the cervical spine, that the MRI test is considered as the goal standard to determine injury to the cervical and lumbar spine and therefore, the MRIs were appropriate to determine any possible permanent injury to the spine.

In determining whether services are not medically necessary, the Court is concern with proof demonstrating that the services were not reasonable in light of the patient’s injury, subjective and objective evidence of the patient’s complaints of pain, and the goals of evaluation and treatment of the patient (see, Fifth Avenue Pain Control Center v. Allstate Ins. Co., 196 Misc 2d 801, 766 N.Y.S. 2d 748, [Civ. Ct., Queens Co., 2003]). When a treating physician prescribes necessary medical services, that patient should receive those services promptly without the need of committee or board approval (see, New York Neurology Associates, PC, v. Allstate Insurance Company, 2003 NY Slip Op. 51297( U) citing Tudor v. Metropolitan Life Insurance Co., 143 Misc 2d 180). A review of the history behind No-Fault Law clearly demonstrates a preference for expedient review of claims with an eye towards benefitting the insured (see Fifth Avenue Pain Control Center v. Allstate Ins. Co., supra). Therefore, any uncertainties concerning the reasonableness of the services are to be resolved in favor of coverage (New York Neurology Associates, PC, v. Allstate Insurance Company, supra).

Here, the Court finds that the Defendant’s medical evidence demonstrated that the services were not medically necessary. However, Plaintiff has sufficiently rebutted Defendant’s medical testimony and has demonstrated the medical necessity of its claims. Dr. Walsh testified that based on the assignor’s age, complaints of back and neck pain and the findings of various objective tests, it was medically necessary to perform the MRI to determine if there was structural damage to the assignor’s cervical and lumbar spine.

Accordingly, judgment is entered in favor of the Plaintiff in the amount of $1,791.00 with statutory interest, costs and attorney fees.

This constitutes the Decision and Order of the Court.

Dated: November 27, 2007_____________________________Sylvia G. Ash, J.C.C.

Civil Court of the City of New York, Kings County

044270/04

For Plaintiff: Gary Tsirelman, P.C.

For Defendant: McDonnell & Adels, P.C.

Eileen N. Nadelson, J.

On September 12, 2005, this court granted Plaintiff’s Motion for Summary Judgment on default, awarding Plaintiff $635.00 for first party No-Fault insurance benefits. The judgment was filed and entered on September 16, 2005.

On or about February 13, 2006, Defendant filed a request for a Declaratory Judgment in the Supreme Court to have that court declare that Plaintiff’s assignors had staged the accident subject to the No-Fault claims. Plaintiff was neither named in the Declaratory Judgment nor notified of its pendency.

On March 15, 2006, the Supreme Court granted Defendant’s Declaratory Judgment on the default of the named assignors and issued a stay of all proceedings. The court’s order stated that Defendant had no duty to pay claims for No-Fault benefits to the named assignors and that the accident subject to these claims was to be deemed “intentionally staged fraudulent and therefore uncovered event.”[sic]

On March 30, 2006, Plaintiff, who was never served with a copy of the Supreme Court order, served Defendant with the Notice of Entry of the Civil Court’s order of September 12, [*2]2005. On May 3, 2006, Plaintiff proceeded to enter judgment on the default, and on May 12, 2006, Defendant’s new counsel advised Plaintiff of the Supreme Court stay. On July 27, 2006, the Civil Court clerk entered the Default Judgment against Defendant.

On September 14, 2006, Defendant filed this instant Order to Show Cause to enforce the Supreme Court stay and to vacate the Notice of Entry of the Civil Court Default Judgment. In its papers, Defendant asserts that Plaintiff is collaterally estopped from enforcing the Default Judgment based on the Supreme Court’s Declaratory judgment.

In support of its assertion, Defendant cites Mulverhill v. State, 257 AD2d 735, 682 NYS2d 478 (3d Dept. 1999), which states, in pertinent part:

The doctrine of collateral estoppel…precludes a party from re-litigating in a

subsequent action or proceeding an issue clearly raised in a prior action or

proceeding and decided against that party or those in privity…. Only two

elements need be established; first, that the identical issue was necessarily

decided in the prior action and is decisive in the present one, and, second,

that the party to be precluded had a full and fair opportunity to contest the

prior determination.

Plaintiff opposes Defendant’s arguments. The Declaratory Judgment was brought against Plaintiff’s assignor to have the alleged accident deemed a staged event not covered by the No-Fault law. Plaintiff maintains that it cannot be collaterally estopped to enforce the No-Fault award because Plaintiff was not a party to the Supreme Court action and therefore had no opportunity to defend against Defendant’s assertions.

In analyzing the definition of collateral estoppel as stated above, this court believes that the requisite elements to hold Plaintiff estopped in the instant proceeding may not exist. First, the No-Fault action preceded the Declaratory Judgment action, and therefore the issue is not being re-litigated in a subsequent proceeding. Second, Defendant was not named in or notified of the Declaratory Judgment action, and therefore had no opportunity to contest the determination. And third, even though Plaintiff stands in privity with the persons named in the Declaratory Judgment, that decision was rendered on default of those persons. The court has no information as to the reason for such default, which could, in fact, be lack of service. If such be the case, that would negate the assumption that they were afforded the opportunity to contest and simply chose to decline.

However, regardless of our analysis of the collateral estoppel argument, this court lacks the jurisdiction to review the decision of the Supreme Court. Any argument Defendant may posit with respect to the underlying appropriateness of the Supreme Court decision must be made before that tribunal. At this point this court is obligated to give full effect to the Declaratory Judgment insofar as it stays all proceedings arising out of the alleged accident with respect to the instant assignor. Since the Entry of Judgment was filed after the Declaratory Judgment was [*3]issued, this court must find the Entry of Judgment of the No-Fault Summary Judgment to be a nullity. This is true even though Plaintiff acted innocently and without knowledge of Declaratory Judgement.

Having determined that the Entry of Judgment is a nullity, the court is faced with the fact that the Summary Judgment in favor of Plaintiff still stands since it predates the Declaratory Judgment. As a consequence, should the stay eventually be lifted, the judgment could be entered at that time. Therefore, this court feels compelled in the interests of efficient administration of justice to determine whether Defendant has provided sufficient grounds to vacate its default of the original No-Fault Motion for Summary Judgment.

Section 5015 of the CPLR provides the grounds upon which a default may be vacated. Simply stated, in order for a defaulting party to have the judgment vacated, within one year of entry of judgment, it must provide the court with a reasonable excuse for its default and evidence of a meritorious defense. In the instant case Defendant has provided absolutely no reason why it never appeared for the argument on the Summary Judgment motion. However, the Supreme Court’s decision on the Declaratory Judgment, even though rendered on default, does provide some evidence of a meritorious defense.

In F & C General Contractors Corp. v. Atlantic Mutual Mortgage Corp., 202 AD2d 629, 612 NYS2d 871 (2d Dept. 1994), the Appellate Court stated that “it is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby.” In this case the court did not adhere to the one year statutorily imposed time limit.

Further, in Lane v. Lane, 175 AD2d 103, 572 NYS2d 14 (2d Dept. 1991), the Appellate Court exercised its discretion in permitting a person not even a party to the underlying action to bring a motion to vacate a judgment. The person seeking the vacatur was directly impacted adversely by the judgement he sought to vacate. The court stated that the default judgment was vacated in the interests of justice because “substantial justice will be subserved and injustice prevented.”

With respect to the instant motion, this court feels obligated to exercise its discretion in favor of vacating its initial Default Judgment in the interests of the efficient administration of the judicial system. As a general principle, the court prefers issues to be decided after a full hearing on the merits rather than by default. This is especially true in the instance of No-Fault claims in which assertions of staged accidents have become commonplace. Despite the fact that Defendant did not appear for oral argument on the Summary Judgment motion, the court notes that Defendant did submit opposition papers in which it posited the argument that the accident that was subject of the claim was staged and therefore not a covered event. This court would prefer to err on the side of caution and justice to make sure that fraudulent claims are not given the imprimatur of judicial sanction simply because a party fails to appear for oral argument. [*4]

Therefore, after deliberating on all of the arguments presented by both sides, the court grants Defendant’s motion to the extent of vacating the Entry of Judgment based on the Supreme Court stay, and further vacates its initial Default Judgment because the Supreme Court order, along with the facts alleged in Defendant’s opposition papers to the original motion, raise a question of fact that precludes summary judgment. CPLR 3212, See generally Gilson v. Metropolitan Opera, 5 NY3d 574, 807 NYS2d 558 (2005). In reaching this conclusion, the court is not making a determination of the collateral estoppel effect of the Declaratory Judgment on Plaintiff; rather it is simply denying Plaintiff’s Motion for Summary Judgment because questions of fact exist.

This constitute the decision and order of the court.

Dated: November 23, 2007

__________________________

EILEEN N. NADELSON, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, November 6, 2007

APPEARANCES OF COUNSEL

Edward Shapiro, P.C., Wantagh (Kim Rasin of counsel), for plaintiff. De Martini & Yi, Williston Park (Dana M. Koos of counsel), for defendant.

{**17 Misc 3d at 950} OPINION OF THE COURT

Genine D. Edwards, J.

{**17 Misc 3d at 951}At the outset of this trial to recoup no-fault benefits, the parties stipulated that plaintiff’s prima facie case was established, the defendant’s denial of claim forms were mailed on the date indicated on each denial, the peer review report and the documents reviewed were in evidence, and that the defendant’s witness was an expert. The defendant proffered the testimony of its peer review physician, John P. Russo, D.C.; the plaintiff did not proffer any witnesses.

After the bench trial of this matter, in conjunction with a case with the index number 19685/06, regarding assignor Connie Brady, this court, via correspondence dated August 7, 2007, required the parties to submit posttrial memoranda with respect to plaintiff’s motion in limine regarding the time for scheduling an examination under oath. Plaintiff’s memorandum was due on September 11, 2007 and defendant’s memorandum was due on October 11, 2007. Plaintiff failed to provide a memorandum, therefore the defendant did not provide a memorandum, but instead requested that plaintiff’s motion in limine be denied for failure to comply with this court’s briefing schedule.

The plaintiff orally argues that the defendant’s request for an examination under oath did not toll defendant’s time to pay or deny plaintiff’s claims because the examination under oath was scheduled more than 30 days after receipt of the claim. Plaintiff relies on Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) and S & M Supply v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004]). Defendant counters that Regulations § 65-3.5 (d) only relates to medical examinations, while subdivision (e) instructs as to examinations under oath. The defendant argues that subdivision (e) does not direct a date certain or a specific time to schedule the examination under oath; the subdivision only discusses a reasonable time and place for such examination.

After due deliberation of the evidence and arguments asserted, this court finds that the plaintiff’s contentions are correct. Although case law directly on point could not be found, this court must be guided by the legislative intent to resolve no-fault matters expeditiously. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Fair Price Med. Supply [*2]Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term,{**17 Misc 3d at 952} 2d & 11th Jud Dists 2005]; Metropolitan Radiological Imaging v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675 [Civ Ct, Queens County 2005].) Therefore, the defendant was bound to conduct the examinations under oath within the same time period imposed for the medical examinations, to wit, “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR 65-3.5 [d]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; S & M Supply, supra.)

However, the plaintiff failed to offer any evidence as to when it received the verification forms. Thus, this court cannot determine whether the examinations were scheduled within the requisite time period. Therefore, plaintiff’s motion is denied.

Since the parties stipulated that plaintiff’s prima facie case was established, the defendant now has the burden of producing the existence of a material issue of fact. The defendant fails at its burden. There is not one scintilla of evidence to prove that the defendant timely mailed the verification requests. (Mega Supply & Billing, Inc. v AIU Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50687[U] [App Term, 2d & 11th Jud Dists 2007]; Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 144[A], 2007 NY Slip Op 50394[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]; Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists 2005].) Hence, defendant’s time to pay or deny the plaintiff’s claims was never tolled.

Assuming, arguendo, that the defendant met its initial burden of timely mailing, this court finds that the defendant’s expert’s testimony was unpersuasive. Dr. Russo testified that the equipment was not against accepted medical protocol, but he would not have recommended the equipment in these cases. This evidence fails to prove that the durable equipment prescribed to Debra and Connie Brady was not medically necessary.

Accordingly, judgment is in favor of the plaintiff in the amount of $822 for each case, as well as statutory interest and attorney’s fees.