Index No. CV-109640-02/QU

Plaintiff’s counsel:
The Law Offices of Shay Shailesh Deshpande, LLC
2626 East 14th Street, Suite 205
Brooklyn, NY 11235

Defendant’s counsel:
McDonnell Adels & Klestzick, PLLC
401 Franklin Avenue, Suite 200
Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Defendant’s Notice of Motion and Affirmation (“Motion”) filed with the court on November 8, 2017. 1
Plaintiff’s Affirmation in Opposition (“Opposition”) to the Motion. 2
Defendant’s Reply Affirmation (“Reply”) to the Opposition. 3
Civil Court, Queens County Decision and Order dated May 31, 2018. 4
Appellate Term for the 2nd, 11th and 13th Judicial Districts’ Decision and Order dated August 14, 2020. 5

II. Background

In a summons and complaint filed November 12, 2002, Plaintiff sued Defendant insurance company to recover unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Rytchagova, plus attorneys’ fees and statutory interest. The action was marked “inactive” as of June 2, 2007. Defendant moved to dismiss Plaintiff’s complaint as abandoned (CPLR 3404) or as barred by laches and to stay interest, which Plaintiff opposed. In an order entered May 29, 2018 (“Prior Order“), the court (H., J.) granted Defendant’s Motion on the ground it was barred by laches and dismissed Plaintiff’s complaint with prejudice, denied the stay of interest as moot, and noted that CPLR 3404 was inapplicable without ruling on that ground. By notice of appeal filed July 27, 2018, Plaintiff appealed the Prior Order. In a decision and order dated August 14, 2020, the Appellate Term for the 2nd, 11th and 13th Judicial Districts reversed the Prior Order and remitted the matter to Civil Court to determine the remaining branches of Defendant’s Motion.

III. Discussion and Decision

The branches of Defendant’s Motion remaining after the remand by the Appellate Term sought dismissal on the ground that the Plaintiff abandoned the action by failing to restore the action since it was marked disposed on June 2, 2007, and alternatively, sought to stay interest from June 2, 2007, the date the matter was marked off, until the date the matter was restored.

CPLR 3404 provides:

A case in the supreme court or a county court marked “off” or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

It is well established that CPLR 3404 does not apply to actions in New York City Civil Court (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2d Dept 2007]; Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 50 Misc 3d 144[A], 2016 NY Slip Op 50255[U] *1 [App Term 2d Dept 2016]; Halpern v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52321[U] * 2 [App Term 2d Dept 2012]; Small v Metropolitan Prop. & Cas. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50760[U] * 1 [App Term 2d Dept 2012]). Even if CPLR 3404 were to be applied in New York City Civil Court, since CPLR 3404 does not apply to pre-note of issue actions (Guillebeaux v Parrott, 188 AD3d 1017, 1017 [2d Dept 2020]; Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393 [2d Dept 2019]; Kapnisakis v Woo, 114 AD3d 729, 730 [2d Dept 2014]; Arroyo v Board of Educ. Of City of NY, 110 AD3d 17, 19 [2d Dept 2013]), CPLR 3404 furnished no basis to dismiss as no party had filed a notice of trial, which is the Civil Court equivalent of the note of issue (Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]; Richman v Obiakor Obstetrics & [*2]Gynecology, P.C., 32 Misc 3d 135[A], 2011 NY Slip Op 51461[U] *1 [App Term 2d Dept 2011]). Therefore, this Court denies Defendant’s motion to dismiss pursuant to CPLR 3404.

In its Reply, Defendant also contended that Plaintiff’s complaint must be dismissed pursuant to 22 NYCRR § 208.14[c], which provides that “[a]ctions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken.” Here, Defendant’s arguments regarding 22 N.Y.C.R.R. § 208.14[c] were improperly raised for the first time in its Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, 197 AD3d 625, 627 [2d Dept 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). Although Plaintiff did not address this contention in its improper sur-reply, in any event, 22 N.Y.C.R.R.§ 208.14[c] “makes no provision for dismissing an action for neglect to prosecute” (Chavez v 407 Seventh Ave. Corp., 39 AD3d at 456; Hillside Place, LLC v Shahid, 55 Misc 3d 101, 103 [App Term 2d Dept 2017]; Marone v Bevelaqua, 36 Misc 3d 140[A], 2012 NY Slip Op 51484[U] *2 [App Term 2d Dept 2012]), which was what Defendant argued here. Despite the inapplicability of CPLR 3404 and 22 N.Y.C.R.R. § 208.14[c], Defendant is not without remedy (see Guillebeaux v Parrott, 188 AD3d at 1018; Onewest Bank, FSB v Kaur, 172 AD3d at 1393; General Assur. Co v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]).

Defendant alternatively argued that interest accrual should be stayed from the time the case was marked off until the time it is restored. “If an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (11 NYCRR § 65-3.9[d]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 204 n. 2 [2d Dept 2009]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] *1 [App Term 2d Dept 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term 2d Dept 2014]). Although Plaintiff commenced the action on November 12, 2002, the only activity in the action was Plaintiff’s motion and Defendant’s cross-motion for summary judgment, which were both denied in an order (Butler, J.) entered September 9, 2004, Defendant’s instant Motion to dismiss, which was filed with the court on November 8, 2017 and the subsequent appellate practice culminating in the order of the Appellate Term dated August 14, 2020.

As noted above, Plaintiff has not filed a notice of trial. Although the case was “inactive” as of June 2, 2007, a disposed marking of a pre-note of issue case is not permitted (Bilkho v Roosevelt Sq., LLC, 157 AD3d 849, 850 [2d Dept 2018]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2d Dept 2005], see Arroyo v Board of Educ. Of City of NY, 110 AD3d at 21). Here, the disposed marking does not prevent Plaintiff from prosecuting the case because undoing such marking does not require a motion to restore (Arroyo v Board of Educ. of City of NY, 110 AD3d at 20; General Assur. Co. v Lachmenar, 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]). Plaintiff should not be rewarded for the years of inactivity in the court proceeding “by receiving a windfall of interest” (Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 2016 NY Slip Op 51240[U] *1; V.S. Medical Services, P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] *2 [App Term 2d Dept 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89). Therefore, this Court grants this branch of Defendant’s motion and in the event that Plaintiff prevails on its claim, fixes the date interest accrues to such date as a notice of trial is filed (see V.S. Medical Services, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760[U] * 2; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss on the ground that Plaintiff abandoned the action is denied; and it is further

ORDERED that Defendant’s motion to fix accrual of interest is granted; and it is further

ORDERED that in the event Plaintiff prevails on its claims, interest shall accrue from the filing date of the notice of trial.

This constitutes the Decision and Order of this Court.

______________________________
HON. WENDY CHANGYONG LI, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, September 30, 2022

APPEARANCES OF COUNSEL

Law Offices of Buratti, Rothenberg & Burns for defendant.

Law Offices of Zara Javakov Esq., P.C. for plaintiff.

Defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

This action was brought for the recovery of no-fault benefits under New York State law. The underlying facts are not in dispute. Plaintiff is a provider of medical benefits and the assignee of Shaquasia Partlow, the passenger of a motor vehicle involved in an accident that occurred on May 6, 2019, in the State of Florida. On or about May 23, 2019, in response to a letter of representation from plaintiff’s attorney, nonparty Progressive Express Insurance Company sent a letter to plaintiff’s counsel which confirmed that Progressive had issued a policy for the vehicle and driver. The letter had a header which included a section entitled “Name of Insured,” and which listed Shaquasia Partlow. The letter stated, in bold type, “[T]here are no coverage issues at this time.” The letter also notified plaintiff’s counsel that the vehicle “may have additional insurance with Farmers” and provided a policy number.

Defendant Farmers Insurance also issued a policy covering the vehicle and was similarly informed of the accident. On June 21, 2019, Farmers sent Ms. Partlow a letter which informed her that she did not qualify for personal injury protection under Farmers’ policy for this accident.

Farmers’ letter noted that the vehicle was being used as an Uber ride sharing vehicle at [*2]the time of the accident.^[FN1] As the letter further explained, Farmers’ policy was for personal, noncommercial use only. Under the Farmers policy express terms, insured persons did not include any person in the vehicle while the vehicle was engaged in a commercial ride sharing{**77 Misc 3d at 222} activity. The letter further advised that any claims for service should be directed to Ms. Partlow’s Uber claim or her personal health insurance carrier. The June 21, 2019 letter did not claim that payment of no-fault claims was the responsibility of Progressive or any other insurer.

On July 24, 2019, assignor sought medical benefits from plaintiff. Despite both aforementioned letters, on July 30, 2019, plaintiff sought payment for the services from Farmers. Farmers denied those claims by letter dated August 8, 2019, stating that plaintiff’s assignor was “not eligible for benefits under this policy.” Farmers gave no additional reason or explanation for the denial and did not claim that no-fault benefits were the responsibility of Progressive or any other insurer.

This action was commenced on or about August 26, 2019. On July 22, 2020, defendant filed a motion for summary judgment to dismiss the complaint on the basis that plaintiff’s assignor was not covered by defendant’s policy. On December 30, 2020, plaintiff filed a cross motion for summary judgment for the amount stated in the complaint, $846.69, plus statutory interest and attorneys’ fees, pursuant to CPLR 3212.

Defendant, in support of its own motion and in opposition to the cross motion, submitted the affidavit of its claims supervisor, Vincent D’Ugo, a certified copy of defendant’s policy at issue, and the correspondence from Progressive of May 23, 2019. Also attached as exhibits were Farmers’ June 21, 2019 letter to the assignor and the August 8, 2019 letter to plaintiff in which it had stated that its claims were not covered by its policy.

Defendant argued that plaintiff, as assignee of Ms. Partlow, was not entitled to reimbursement under defendant’s policy because the vehicle in the accident was being used as an Uber ride sharing vehicle at that time. As defendant’s coverage was solely for personal use and not commercial use of the vehicle, any persons injured or any property damaged were not covered, as the accident was not an insured incident under the policy.

Plaintiff, in its cross motion, argued that it had established its prima facie case by proving the submission of its claim to Farmers and Farmers’ nonpayment of that claim. In support, plaintiff submitted the affirmation of an employee familiar with the billing procedures used for this claim. Plaintiff also argued that it should also prevail on its cross motion because defendant, in its opposition to the cross motion, failed to submit sufficient evidence showing that defendant had timely denied that claim. Plaintiff did acknowledge receipt of the denial.{**77 Misc 3d at 223}

In opposition to defendant’s motion and in further support of its own cross motion, plaintiff cited 11 NYCRR 65-4.11 (a) (6), and argued that as the first insurer billed, Farmers was responsible to pay the claim submitted to it, and then arbitrate with Progressive the issue of who was responsible for coverage of the claim.

Insurance Law § 5106 (d) (1), which creates the obligation for the first-billed insurer to pay and then arbitrate, provides:

“[W]here there is reasonable belief more than one insurer would be the source of first [*3]party benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, then the first insurer to whom notice of claim is given shall be responsible for payment. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section five thousand one hundred five of this article and regulations as promulgated by the superintendent, and any insurer paying first-party benefits shall be reimbursed by other insurers for their proportionate share of the costs of the claim and the allocated expenses of processing the claim, in accordance with the provisions entitled ‘other coverage’ contained in regulation and the provisions entitled ‘other sources of first-party benefits’ contained in regulation.”

Insurance Law § 5105 (b) further states that “all disputes arising between insurers concerning their responsibility for the payment of first party benefits” shall be submitted to mandatory arbitration.

11 NYCRR 65-4.11 (a) (6) regulates the mandatory arbitration called for by the Insurance Law. However, it specifically states that “this section shall not apply to any claim for recovery rights to which an insurer in good faith asserts a defense of lack of coverage of an alleged covered person on any grounds.”

Farmers has established its defense of lack of coverage in this case. Plaintiff does not dispute that the vehicle in question was being used for a ride sharing service at the time of the accident. It is also not disputed that only insured persons (as defined in the Farmers policy) were covered and that a person injured while using the vehicle as a part of a commercial ride sharing program was not covered as an insured person. Indeed,{**77 Misc 3d at 224} in its papers, plaintiff does not advance any reason as to why Farmers was incorrect in disclaiming coverage, nor explain why Ms. Partlow should have been covered as an insured person. As such, the provisions of 11 NYCRR 65-4.11 (a) (6) do not apply under the regulation’s own terms, and the issue is not subject to mandatory arbitration (see e.g. RX Warehouse Pharm. Inc. v Erie Ins. Exch., 63 Misc 3d 1236[A], 2019 NY Slip Op 50905[U] [Civ Ct, Kings County 2019]). As coverage was not included for this accident under the terms of the policy, the lack of coverage denial was proper.

Further, the relevant statutes and regulations consistently provide that if there is a “dispute” or “controversy” between the insurers, the claims between said disputing insurers are subject to mandatory arbitration.^[FN2] Similarly, Insurance Law § 5106 (d) (1) states that

“where there is reasonable belief more than one insurer would be the source of first party benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, then the first insurer to whom notice of claim is given shall be responsible for payment.”

In this case there were no disputes or controversies between insurance companies, nor was there any reasonable basis for submission to Farmers in July 2019. In May 2019, Progressive wrote that Ms. Partlow was an insured and there were no issues with coverage at this time. In June 2019, prior to plaintiff providing benefits, Farmers informed Ms. Partlow that they would not be providing coverage as the accident was not covered. Hence, the mandatory arbitration regulations for situations where there is a dispute and controversy are not applicable.

Plaintiff’s reliance on M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (81 AD3d 541 [1st Dept 2011]) is unavailing. In that case, the Appellate Division held that GEICO’s denial of coverage defense was invalid and the matter was subject to mandatory arbitration. However, in M.N. Dental Diagnostics the Court held that case involved an intercompany dispute, because the defendant had denied plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (id.). By pointing to another insurer, the Court held that defendant had raised an issue as to which insurer{**77 Misc 3d at 225} was obligated to pay first-party benefits. Thus, M.N. Dental Diagnostics was a “controversy between insurers involving the responsibility or the obligation to pay first-party benefits,” which the regulation states is “not considered a coverage question.” (11 NYCRR 65-4.11 [a] [6].)

In contrast, here, defendant did not deny plaintiff’s claims on the grounds that another insurer, such as Progressive, was responsible. Rather, Farmers solely denied the claim on the basis that the accident was not covered under the terms of the Farmers policy, a claim supported by the evidence Farmers submitted in support of its motion. Under such circumstances, there is no “controversy between insurers” under 11 NYCRR 65-4.11 (a) (6) that would be subject to mandatory arbitration.

In fact, in the underlying Appellate Term’s decision in M.N. Dental Diagnostics, the court offers additional details:

“GEICO’s argument that its denial of benefits raised an issue of coverage because it was not ‘otherwise liable’ for the payment of first-party benefits (see 11 NYCRR 65-3.12 [b]) is unavailing, since it ignores the endorsements contained in its own insurance policy, which expressly provided Burgos with rental and substitute automobile coverage. Where, as here, more than one insurance policy provides coverage for a no-fault claim, the issue becomes one of priority of payment.” (M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co., 24 Misc 3d 43, 44-45 [App Term, 1st Dept 2009].)

Hence, in M.N. Dental Diagnostics, P.C., not only was there a dispute between insurers, there was also a valid basis for a reasonable belief that more than one insurer could be the source of first-party benefits, as GEICO had possibly provided the assignee with coverage. Thus, in that case there was a real question as to which insurance company was responsible, and as to the priority of payment. Here, in July 2019, by the time the services were provided, there was no question, nor a valid basis for a reasonable belief, that Farmers had coverage, nor was there a question of priority.

Finally, the Court of Appeals has discussed several factors when considering questions of whether a defense is in fact based on lack of coverage and related timeliness or notice issues. Guidance includes whether: (a) the claim would create coverage where none existed; (b) the asserted defense is more like a “normal” exception from coverage, or a lack of coverage{**77 Misc 3d at 226} in the first instance; and (c) the denial of liability based upon lack of coverage within the insurance agreement is distinguishable from disclaimer attempts based on a breach of a policy condition (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).

Here, there has been no argument presented that this was either a covered accident under the Farmers policy, or that the assignor was in fact covered by Farmers. Hence, requiring Farmers to make a payment would be creating coverage. In addition, prior to the services being sought, assignor’s counsel had notice that Progressive would provide coverage, and assignor had [*5]knowledge that Farmers would not. Accordingly, this court cannot impose coverage where none existed. It is therefore ordered that defendant’s motion for summary judgment is granted, and it is further ordered that plaintiff’s cross motion for summary judgment is denied, and it is further ordered that this matter is dismissed.

Footnotes

Footnote 1:Plaintiff’s opposition to defendant’s motion fails to rebut or even deny this, and correspondence defendant received from Uber in February of 2020 and annexed to its motion papers further confirms that the vehicle was engaged in a ride sharing activity at the time of the accident.

Footnote 2:See Insurance Law § 5105; 11 NYCRR 65-4.11 (a).

Index No.: CV-700046-20/QU

Plaintiff’s counsel: Law Offices of Gabriel & Shapiro LLC, 3361 Park Avenue Suite 1000, Wantagh, NY 11793

Defendant’s counsel: Rivkin Radler LLP, 926 RexCorp Plaza, Uniondale, NY 11556

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

II. Background

In a summons and complaint filed July 12, 2018, Defendant commenced an action in Supreme Court, Nassau County (“Supreme Court Action“) against Plaintiff seeking a judgment declaring that Defendant owed no duty to pay Plaintiff’s No-Fault claims because Plaintiff failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Aff. of Pontrello, Ex. 3). In a summons and complaint filed January 2, 2020, Plaintiff sued Defendant insurance company to recover $346.52 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Martinez from September 8 to 27, 2017, for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Pontrello Aff., Ex. 1). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, [*2]111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). Here, Defendant relied on an order dated October 4, 2019 (“Supreme Court Order“) in the Supreme Court Action, in which Supreme Court denied Plaintiff’s motion to compel arbitration, finding that Plaintiff “failed to satisfy the requirement of insurance coverage by appearing for the examination under an oath as noticed by” Defendants (State Farm Mut. Auto. Ins. Co. v Fine Needle Acupuncture, PC, Sup. Ct. Nassau County, October 4, 2019, Brandveen, J., Index No. 609282/18; Motion, Pontrello Aff., Ex. 4). Since the Supreme Court Order was not an order granting Defendant a default judgment, as Defendant erroneously contended, here, Defendant failed to demonstrate that res judicata bars the present action.

Nevertheless, the related concept of collateral estoppel bars Plaintiff’s action. Collateral estoppel or issue preclusion prevents re-litigation of a factual or legal issue actually raised and resolved in a prior court determination (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]; Buechel v Bain, 97 NY2d 295, 303 [2001]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 152 [2d Dept 2021]; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d 931, 931-32 [2d Dept 2021]). In order to apply collateral estoppel, “there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-04; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d at 932). In our instant case, both factors have been established. In the Supreme Court Action, Supreme Court found that Plaintiff failed to appear for the scheduled EUOs and did not challenge that Defendant requested the EUOs and had a valid reason for requesting them. It is well settled that noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Since Plaintiff is collaterally estopped from raising the issue of its non-attendance of the EUOs in the instant matter and Defendant presented evidence that it had timely denied Plaintiff’s claim based on Plaintiff’s failure to attend the EUOs (see Motion, Pontrello Aff., Ex. A), Defendant here is entitled to dismissal of Plaintiff’s complaint.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted without opposition and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Index No. CV-725161-20/QU

Plaintiff’s counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Center, NY 11570

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion in its claims:

Defendant’s Notice of Motion and Affirmation in Support dated April 4, 2021 (“Motion“) and filed with the court on April 26, 2021. 1
Plaintiff’s Cross-Motion and Affirmation in Support dated August 4, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2
Defendant’s Affirmation in Opposition dated December 27, 2021 (“Opposition“) and electronically filed with the court on December 30, 2020. 3

In a summons and complaint filed on December 18, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,359.40 in unpaid first party No-Fault benefits for medicine prescribed to Plaintiff’s assignor Viera on September 24, 2020, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved for summary judgment dismissing the complaint on the grounds that Plaintiff lacked standing, and alternatively that Defendant timely denied Plaintiff’s claim based on lack of medical necessity. Plaintiff cross-moved for summary judgment on its claim against Defendant. An oral argument by both parties was conducted by this Court.

III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Defendant contended that Plaintiff lacked standing to bring action on its claim for No-Fault benefits provided to Viera and alternatively that the treatment Plaintiff provided to Viera was not medically necessary. Defendant argued Plaintiff lacked standing because the assignment of benefits was executed by Viera, who was a minor. Here, even assuming that it was improper for a minor to execute an assignment of benefits as Defendant contended (see 11 NYCRR 65-3.11[a]), Plaintiff presents prima facie entitlement to No Fault benefits by presenting an assignment of benefits form where Defendant fails to timely seek verification of the assignment’s validity (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007], see Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 46 Misc 3d 129[A], 2014 NY Slip Op 51810[U] *1 [App Term 2d Dept 2014]). Moreover, Defendant’s failure to timely object to the assignment waived any defenses based on any deficiencies in the assignment (Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348 [2d Dept 2005]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50488[U] *2 [App Term 2d Dept 2010], see Beal-Medea Prods., Inc. v Geico Gen. Ins. Co., 51 Misc 3d 138[A], 2016 NY Slip Op 50594[U] *1 [App Term 2d Dept 2016]).

Regarding medical necessity, Defendant’s denial on that ground must completely and clearly state the reason for denial of the claim and apprise Plaintiff of the grounds upon which [*2]disclaimer is based (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] *1 [App Term 2d Dept 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] *1 [App Term 2d Dept 2003], see Delta Diagnostic Radiology, P. C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 126[A], 2006 NY Slip Op 52370[U] *2 [App Term 2d Dept 2006], see e.g., Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19, 21 [App Term 2d Dept 2013]). To support the contention that the prescribed medication was not medically necessary, Defendant presented the affirmation of Agrawal, M.D., dated November 3, 2020. Dr. Agrawal attested that Viera “was prescribed Lidocaine 5% ointment by Dr. Hausknecht, which was not medically necessary and not causally related as it is not supported by enough evidence. Lidocaine is questionable in a 15-year-old [sic] as efficacy, especially given the side effects of cardiac arrythmia and seizures. Her pain seems to be causally related, but I question this aggressive testing and treatment in a 15 year old child” (Motion, O’Shea Aff., Ex. C at 6). Dr. Agrawal’s opinion that the medication prescribed was not medically necessary was entirely conclusory (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). In addition, while Dr. Agrawal addressed the advisability of the medication prescribed for Plaintiff, nowhere did Dr. Agrawal state that such treatment was unnecessary. Therefore, Defendant’s denial on the ground of medical necessity was factually insufficient and may not be raised as a defense to Plaintiff’s claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U] *2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1-2).

Regarding Plaintiff’s Cross-Motion, Plaintiff’s sole contention was that Defendant’s payment or denial of Plaintiff’s claim was untimely. Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term 2d Dept 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Plaintiff pointed to its bill and Defendant’s denial of claim form which indicated that Defendant received Plaintiff’s bill for $1,359.40 on October 28, 2020 (see Motion, O’Shea Aff., Ex. C). A denial of claim form, however, is insufficient to establish a medical provider’s prima facie case but suffices to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). Although Defendant’s denial of claim form established Defendant’s timely denial of the claim, as discussed above, Defendant failed to establish the lack of medical necessity of prescribed medication upon which Plaintiff based its claim (Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). Therefore, Plaintiff has demonstrated entitlement to summary judgment on its claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U]*2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint (Motion Seq. #1) is denied; and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant (Motion Seq. #2) is granted; and it is further

ORDERED that the Clerk shall enter judgment in Plaintiff’s favor and against Defendant in the amount of $1,359.40 together with statutory interest from October 28, 2020 and statutory attorneys’ fees.

This constitutes the court’s Decision and Order

Index No. CV-701018-20/RI

Plaintiff’s Counsel
Joseph Sparacio Attorney At Law PLLC
292 Nelson Avenue
Staten Island, NY 10308
(718) 966-0055

Defendant’s Counsel
Law Offices of Tina Newson-Lee
PO Box 2904
Hartford, CT 06104
(917) 778-6500

MK Healthcare Medical PC (“MK Healthcare”) as assignee of Marleine Sully (“Assignor”) (collectively referred as “Plaintiff”), commenced this action to recover $913.39 in assigned first-party no-fault benefits from Defendant Travelers Insurance Company (“Defendant”).

Plaintiff represents that the Assignor sustained injuries during an accident that occurred on December 31, 2018, in which the Assignor was a front-seat passenger. According to the Plaintiff, Defendant improperly failed to pay for treatment rendered to the Assignor in connection with her alleged injuries in the amount of $913.39. Specifically, Plaintiff alleges that Defendant failed to pay for a “NCV w/f wave lower” (“F Wave”) and “Needle EMG lower” [*2](“EMG”) (collectively “Procedures”) performed on April 22, 2019. The Procedures were electrodiagnostic studies of the Assignor’s lower extremities. While Plaintiff argues that Defendant is responsible for paying for the Procedures, Defendant maintains that it was under no such obligation since the Procedures were not medically necessary.

On August 3, 2022, the Court held a virtual bench trial during which both Plaintiff and Defendant were represented by counsel. Pursuant to a stipulation entered into by the parties, Plaintiff and Defendant stipulated that MK Healthcare met its prima facie burden and consented to the admission of evidence, namely medical records, medical reports, expert witness disclosure, as well as portions of the Referral Guidelines for Electrodiagnostic Medicine Consultations. The parties also stipulated to the expertise of the Defendant’s expert, Ayman Hadhoud, M.D. (“Dr. Hadhoud”). Accordingly, the only matter at issue in the trial was whether Defendant’s denial of the claim on the ground of medical necessity was proper under Insurance Law § 5102[a][1].

Defendant’s sole witness was Dr. Hadhoud, a licensed physician and acupuncturist, who performed a peer review of MK Healthcare’s medical records. Dr. Hadhoud testified that Procedures prescribed by MK Healthcare (Richard A. Gasalberti, M.D.) were not medically necessary. Dr. Hadhoud testified as to his review of the relevant MK Healthcare records, which revealed that MK Healthcare recommended Assignor undergo “EMG/nerve conduction studies of the lower extremities to electrophysiologically document for lumbar radiculopathy.” Dr. Hadhoud testified that based upon his review of the medical records, the EMG was not necessary since the Assignor’s neurological exam was normal and there was no clinical presentation that would necessitate an EMG. Dr. Hadhoud further testified that considering the medical records from MK Healthcare, the F Wave was also not medically necessary because such procedure was not necessary in the context of ruling out radiculopathy in the Assignor.

The Court notes that during the trial, the Plaintiff did not call any witnesses. Furthermore, the only evidence that Plaintiff submitted in support of its claim that the Defendant violated Insurance Law § 5102[a][1] consisted of the documentary evidence that was stipulated into evidence by the parties.

Discussion

Under Insurance Law § 5101, “an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered ‘basic economic loss’ (Insurance Law 5102[a]), subject to the limitations of Insurance Law 5108.” (Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]). “The no-fault law defines “basic economic loss” (Insurance Law § 5102[a]) as ‘[a]ll necessary expenses incurred for: (i) medical, hospital … [and] surgical … services’ (id. § 5102[a][1][i]) as well as loss of earnings from work.” (Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing Insurance Law 5102[a][1]). See Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]; Forrest Chen Acupuncture Services, P.C. v Geico Ins. Co., 15 Misc 3d 137(A) [App Term 2007], affd, 54 AD3d 996 [2d Dept 2008]). As held by the Appellate Division, Second Department, “like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of ‘necessary expenses.'” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d [*3]978, 979 [2d Dept 2022] (citing to Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763, 764-65 [2d Dept 2007])).

The Court finds that based upon Defendant’s denial of claim forms and the findings of Dr. Hadhoud, encompassed in his testimony and report, Defendant sufficiently demonstrated that there was no medical necessity for the Procedures. (See Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 911 N.Y.S.2d 697 [App. Term, 2d Dept., 2010]). The Court found that Dr. Hadhoud’s testimony to be medically sound and credible. Dr. Hadhoud also sufficiently demonstrated that he relied upon his examination as well as his review of the Assignor’s medical records in order to reach his opinion that the Procedures were not medically necessary for the Assignor’s condition. Dr. Hadhoud’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the Procedures. (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 52 Misc 3d 139(A) [App Term 2016]). Based upon the credible testimony of Dr. Hadhoud and the relevant medical records submitted to the Court during trial, the Court finds that Defendant met its burden and demonstrated its entitlement to judgment in its favor.

The Court further finds that Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing. As noted above, “Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity.” (See New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 41 N.Y.S.3d 720 [App. Term 2d Dept., 2016] (holding that the Civil Court should have dismissed the complaint after Plaintiff failed to call a witness to rebut Defendant’s showing of lack of medical necessity.”)). Furthermore, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary.

Accordingly, it is hereby

ORDERED that judgment is rendered in favor of Defendant; and it is

ORDERED that the matter is dismissed with prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated: August 25, 2022
_____________________________
Staten Island, New York
Hon. Brendan T. Lantry
Judge of the Civil Court

Index No. CV-750591-18/KI

Attorney for Plaintiff:
Zachary Whiting, Esq.
Law Office of Zara Javakov Esq., P.C.
100 Livingston St, Fl 4
Brooklyn, NY 11201

Attorney for Defendant:
William Ross Van Tuyl, Esq.
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue, Suite 300
East Meadow, NY 11554

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment on ground that plaintiff’s assignor failed to appear for Independent Medical Examinations (“IMEs”). Plaintiff opposes the defendant’s motion and cross moves for summary judgment in its favor. The following bill is at issue:

Upon the forgoing cited papers, and after oral argument, the Decision/Order on defendant’s motion for summary judgment and plaintiff’s cross motion is as follows:

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action.
(Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 175 (2019) (internal citations and quotation marks omitted)).

I. IME No-Show

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy.” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006)). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require.'” (Id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant must establish that: (1) it properly mailed scheduling letters for IMEs to plaintiff’s assignor; (2) the IME was timely scheduled; (3) the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and (4) defendant timely denied the claim on that ground. (Motionpro Physical Therapy v. Hereford Ins. Co., 58 Misc 3d 159(A) (App Term 2018)).

Here, the defendant contends that it issued proper and timely denials based on the assignor’s failure to appear for three scheduled IMEs. Defendant submitted the affidavit of its claims representative, Christopher Stewart to explain why defendant requested the IMEs. (See defendant’s exhibit D, Stewart aff). Stewart attested that defendant requested an IME after receiving notice that plaintiff’s assignor was involved in an accident on March 22, 2018. (Id. at ¶ 14). Thereafter, defendant requested a third-party company, ExamWorks, Inc. to schedule an initial IME on June 12, 2018 at 2:15pm. (Id. at ¶ 15). ExamWorks, Inc. also rescheduled follow-up IMEs for July 10, 2018 at 1:00 pm and August 14, 2018 at 1:00 pm. ((Id.).

“Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee.” (Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co.,114 AD3d 33, 46 (2d Dept 2013)). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547 (2d Dept 2006) quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 (2d Dept 2001). To the extent that proof of mailing is based upon a standard office practice or procedure, the burden is on the insurer to present an affidavit of an employee who personally mailed the items, or an employee with personal knowledge of the office’s mailing practices and [*2]procedures. (Quality Psychological Services, P.C. v. Hartford Ins. Co., 38 Misc 3d 1210(A) (Civ Ct 2013)). This individual “must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim.” (Id.)

Here, defendant relies on the affidavit of Georgianna Michios, a litigation manager at ExamWorks Inc. to establish proof of timely mailing of the IME scheduling letters. (See defendant’s exhibit I, Michios aff). The Court finds that defendant’s submission of Michios’ affidavit is insufficient to establish that the IME scheduling letters were timely and properly mailed. The Court agrees with plaintiff that the affidavit is conclusory. Michios merely states that an employee places the scheduling letters in a properly addressed envelope and mails the letter via regular mail and/ or certified mail. (Id. at ¶ 5). This affidavit fails to explicitly state ExamWorks, Inc. practices and procedures for mailing the scheduling letters.

Further, defendant’s submission of the three delivery confirmation receipt is also insufficient to prove that the IME scheduling letters were timely and properly mailed. (See defendant’s exhibit G, IME Scheduling Letters). The Appellate Division, Second Department found that defendant’s submission of a certified mail receipt and “Track & confirm” printout were insufficient where there was no evidence presented that the item purportedly mailed to the plaintiff was mailed under the proffered certified receipt number. (New York and Presbyt. Hosp., 29 AD3d 547). Here, the three delivery confirmation receipts submitted by the defendant state that the items were delivered on May 23, 2016, June 18, 2018 and July 27, 2018, respectively. However, there was no evidence presented that the items purportedly mailed to the plaintiff were mailed under the proffered certified receipt number listed on each delivery confirmation receipt. Thus, the defendant failed to establish timely mailing of the IME scheduling letters.

Even if defendant had demonstrated timely mailing of the scheduling letters, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs. Here, defendant submitted the affidavit of John Iozzio, a licensed chiropractor and acupuncturist. (See defendant’s exhibit H, Iozzio aff). The basis of Iozzio’s information is his personal knowledge of his office policy, and review of the physical file and computer records. (Id. at ¶ 3). Iozzio’s business practice is to make a notation in the file, if the individual fails to appear. (Id. at ¶ 4). Iozzio stated that he personally recorded each of Keandre Black’s nonappearance at the scheduled IMEs. (Id. at ¶¶ 6,8,10). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay.’ “

Further, Iozzio stated that he was present at each scheduled IME. According to Iozzio, the assignor failed to appear for the initial IME on June 12, 2018, and rescheduled follow-up IMEs on July 10, 2018 and August 14, 2018. (See Iozzio aff Iozzio at6,8,10). Iozzio neither stated how and whether he would have been able to identify the insured, or that no one appeared at the office at the time of each scheduled IME. (Longevity Medical Supply, Inc., 68 Misc 3d at 748). Therefore, the court agrees with plaintiff that Iozzio’s affidavit lacked personal [*3]knowledge regarding the assignor’s nonappearance.

Thus, defendant failed to establish that plaintiff’s assignor failed to appear at the IMEs on June 12, 2018, July 10, 2018 and August 14, 2018.

II. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim.” (Infinity Health Prods., Ltd. v. Eveready Ins. Co., 67 AD3d 862, 864 (2d Dept. 2009) [internal citations omitted]).

Defendant contends that on June 12, 2018 it received a bill from plaintiff for the dates of service on May 17, 2018 through June 6, 2018. The bill was in the amount of $1049.79. According to defendant, after plaintiff’s assignor failed to appear for IMEs on June 12, 2018 and August 14, 2018, a general denial form dated August 22, 2018 was mailed to plaintiff on August 23, 2022. This denial falls within the 30-days period. Also, another denial of claim form dated September 20, 2018 was mailed to plaintiff on September 21, 2018.

To establish proper mailing, defendant submits the affidavit of Carlton Lewis, a mailing manager, and certificates of mailing report. (See defendant’s exhibit E, Lewis aff; defendant’s exhibit C, Denials). According to Lewis, the items were either generated and mailed from mailing centers in Chino, California or Caledonia, Michigan. (Lewis aff ¶ 3). Lewis further stated that both denials were delivered to the U.S. Post Office, and there were no notations on the certificate of mailing reports that either denial was delayed or there were any malfunctions. (Id. at ¶¶ 9,10,15). Lewis’ affidavit and certificates of mailing reports establish proof of mailing of the denial claims forms on August 23, 2022 and September 21, 2018, in accordance with a standard office procedure. (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001); Ortho-Med Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 27 Misc 3d 141(A) (App Term 2010)).

Contrary to plaintiff’s arguments, Lewis demonstrated personal knowledge of the mailing procedures. Lewis was employed as the mailing manager at both the Caledonia and Chin mailing centers (Curtin aff ¶ 1). Also, he is responsible for ensuring that the standard mailing practices and procedures are followed. (Id. at ¶ 2). Further, Lewis’ affidavit properly laid the foundation for the admission of the denial of claim forms and certificates of mailing reports as business records.

Thus, defendant timely issued denial of claim forms for the dates of service on May 17, 2018 through June 6, 2018. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on May 23, 2016, June 18, 2018 and July 27, 2018.

Accordingly, defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s claim.

A no-fault provider establishes its prima facie entitlement to summary judgment by (1) proof of the submission to the defendant of a claim form; (2) proof of the fact and the amount of the loss sustained; and (3) proof either that the defendant had failed to pay or deny the claim within the requisite 30—days period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (See Insurance Law § 5106(a)); Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 (2010); see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2006)). Once plaintiff meets its prima facie [*4]burden, the burden shifts to defendant to raise a triable issue fact. (See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)).

To establish proper mailing, plaintiff submits the affidavit of its owner, Albert Khaimov to describe its’s standard office and procedures for generating and mailing bills. (See plaintiff’s exhibit C, Khaimov aff). Khaimov stated that he created a bill in the amount of $1049.79 for the dates of service on May 17, 2018 through June 6, 2018. (Id. at 20). However, he does not state when the bill was mailed to defendant. The court may, in its discretion, rely on defendant’s documentary submissions to establish defendant’s receipt of plaintiff’s claims. (Devonshire Surgical Facility v. GEICO, 16 Misc 3d 130(A) (App Term 2007)). Here, defendant’s claim representative affidavit established receipt of plaintiff’s bill on June 12, 2018. (Stewart aff 18). Further, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills. (Bob Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135(A) (App Term 2016); see Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc 3d 74 (App Term 2006); Longevity Med. Supply, Inc., 68 Misc 3d at 758). Therefore, defendant’s claim representative affidavit and denial of claims forms established receipt of plaintiff’s claim. Further, Khaimov stated that the bill was neither paid nor denied within the 30-days period. (Khaimov aff 20).

Defendant proved that it timely denied plaintiff’s claim by timely mailing denial of claim forms. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at duly scheduled IMEs. Therefore, the issue that is presented here is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient. The court in Longevity Med. Supply, Inc. v. Progressive Ins. Co discussed how two Appellate Term, Second Department decisions reached opposite results on this issue. (See Longevity Med. Supply, Inc., 68 Misc 3d at 759-60. The court discussed that,

[In Rockaway Med. and Diagnostic, P.C. v. Country-Wide Ins. Co., 29 Misc 3d 136(A) (App Term 2010)], once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds. [Three years later in Shara Acupuncture, P.C. v. Allstate Ins. Co., 41 Misc 3d 129(A) (App Term 2013), once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment. Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment.

(Longevity Med. Supply, Inc., 68 Misc 3d at 760) (internal citations omitted.)

Shara Acupuncture, P.C. controls here. As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-days period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128(A) (App Term 2011)). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely [*5]denial, then the court should consider whether plaintiff met the prima facie burden under the second method. (Longevity Med. Supply, Inc., 68 Misc 3d at 760 citing Longevity Med. Supply, Inc. v. Glob. Liberty Ins. Co., 67 Misc 3d 135(A) (App Term 2020)).

Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-days period. However, the defendant established that it timely denied plaintiff’s bill. Because plaintiff had not demonstrated that the denials were conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor.

Thus, plaintiff’s cross motion for summary judgment is granted to the extent that it established timely submission of the bill to defendant, and that it remains unpaid.

Plaintiff met its prima facie case by establishing timely mailing of the bill to defendant, and that it remains unpaid. Defendant met its prima facie case by establishing timely denial.

Accordingly, the defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s bill. The plaintiff’s cross motion for summary judgment is granted to the extent it established timely submission of the claim to defendant, and the bill remains unpaid. The issue left for trial is defendant’s IME no-show defense.

This constitutes the decision and order of the court.

Index No. CV-009422-20/NY

Peter C. Merani, P.C. (Adam Waknine, of counsel), New York City, for petitioner.

Samandarov & Associates, P.C. (David M. Gottlieb, of counsel), New York City, for respondent.

In this special proceeding arising out of a no-fault arbitration, petitioner American Transit Insurance Company (ATIC) seeks to vacate the determination of a master arbitrator affirming the award of a no-fault arbitrator, which awarded respondent first-party no-fault benefits (Motion Seq. No. 001). Respondent Mark S. McMahon MD, P.C. a/a/o Rubin Gomez opposes the petition and seeks attorney’s fees incurred in opposing the petition.

BACKGROUND

Respondent Mark S. McMahon MD, P.C is the assignee of claims for no-fault benefits for arthroscopic surgery performed on the right knee of Rubin Gomez on October 31, 2017 , for injuries allegedly arising out of an automobile accident on June 3, 2017 (see petitioner’s exhibit B, NF-10 form and Explanation of Benefits). ATIC denied the claims on the ground that the [*2]surgery and surgically related services to the right knew were not causally related to the accident, based on a peer review, and “no medical necessity and no causal relationship between the accident and the shoulder surgery of 10/31/17” (see id.). Respondent then submitted the claims to no-fault arbitration (see petitioner’s exhibit D, no-fault arbitration request).

A no-fault arbitration hearing of respondent’s claims was held before the American Arbitration Association on January 8, 2020 (see petitioner’s exhibit A, no-fault arbitrator award).

Arbitrator Marcie Glasser ruled in favor of respondent, finding that “Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances” (see id. at 5). The no-fault arbitration award dated January 14, 2020 states, in relevant part:

“With regard to medical necessity defense, I find that [ATIC]’s Peer Review Report is sufficient to meet its burden of proof and to rebut [respondent]’s evidence. Thereafter, the burden shifts back to [respondent] to present competent medical proof as to the medical necessity for the knee arthroscopy, by a preponderance of the credible evidence. . . . Ultimately, the burden of proof rests with the [respondent].

* * *

I find that this burden as to medical necessity has been met by [respondent]’s medical records, the Rebuttal Report, Letter of Medical Necessity of Dr. McMahon, and the evidence collectively. I am convinced that the Claimant attempted an ample course of non-operative conservative treatment measures including physical therapy under the circumstances, and the decision to perform arthroscopic knee surgery was reasonable to repair the meniscus tear. Moreover, this finding is supported by the fact that the credibility of the Peer Review Report is diminished as it is found to be conclusory in nature, and because Dr. Skolnick primarily relied upon the independent radiology report of Dr. Fitzpatrick which bears minimal weight in this determination. The treating radiologist and the treating orthopedist both reviewed the MRI which showed a tear of the posterior horn of the medial meniscus. The Rebuttal Report appropriately addressed the issues of the Peer Review Report. The orthopedic surgeon, Dr. McMahon, based on his professional experience, examination and treatment of the Claimant determined that the surgery for the meniscus tear was in accordance with the standard of care. I find that the Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances”

“I find that Respondent has not adequately demonstrated lack of causation, and therefore, the defense cannot be sustained. The Peer Review Report of Dr. Skolnick is found to be conclusory with regard to the issue of causation. Moreover, Dr. Skolnick relied on the Independent Radiology Evaluation of Dr. Fitzpatrick, which states that the MRI findings, specifically the cartilage thinning, are degenerative in nature, but the Independent Radiology Evaluation, was not specific as to the tear in relation to the thinning cartilage. In the Addendum, Dr. Skolnick stated that he agrees with the treating radiologist’s report that the MRI showed a tear of the meniscus; however, according to the independent radiology review of Dr. Fitzpatrick, there was no evidence of traumatic injury. I find that [*3]Dr. Skolnick’s determination that the MRI showed no traumatic injury is without appropriate reliance on the independent radiology review of Dr. Fitzpatrick. The Peer Reviewer himself interpreted the MRI as showing a meniscus tear, which is in accordance with the interpretation of the MRI by the treating orthopedist and the treating radiologist. The independent radiologist did not state with specificity that the meniscus tear is degenerative in nature and there is a lack of support for the opinion that the injury is not causally related to the accident. I find that the reliance on the Independent Radiology Review is misplaced, and Dr. Skolnick’s finding of lack of causation is conclusory”

The arbitrator also awarded interest from the date of 1/21/2019, and attorney’s fees in the amount “in accordance with newly promulgate 11 NYCRR 65-4.6(d) on the amount awarded of $4,702.03 at a rate of 2% per month, simple and ending with the date of payment of the Award” (id. at 7). The arbitrator also directed ATIC to pay respondent $40 for reimbursement of the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award (id.).

On appeal, Master Arbitrator Robert Trestman affirmed the original arbitrator’s award in its entirety. The master arbitration award, dated March 24, 2020 states, in relevant part:

“I have carefully reviewed the parties’ briefs, the record on appeal, as presented by respondent and the pertinent case law, including the two cases hereinabove cited by respondent. The arbitrator’s detailed findings and conclusions as to the medical necessity and causal relationship issues were within the arbitrator’s sound discretion and rational interpretation of the evidence and which I do not find to be reversible error within my purview as a Master Arbitrator. . . . Within my powers as a Master Arbitrator, I cannot conduct a de novo review of the case and I cannot substitute my interpretation or my view as to the weight or credibility of the evidence over that of the lower arbitrator, especially as the arbitrator’s decision appears to be rational and based on the evidentiary record”

The master arbitrator also awarded $195 to the applicant for attorney’s fees for having prevailed in the master arbitrator’s review of the award (see id. at 5).

On July 29, 2020, ATIC commenced this proceeding pursuant to CPLR 7511 to vacate the master arbitrator’s award.

DISCUSSION

“Judicial review of a master arbitrator’s award is restricted, by the terms of the statute, to the grounds for review set forth in article seventy-five of the CPLR” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981] [internal quotation marks omitted]; Insurance Law § 5106 [c]). Pursuant to CPLR 7511 (b), an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his, her, or their power or imperfectly executed it that a final or definite award was not made; or (4) the failure to follow [*4]the procedures of CPLR article 75. Additionally,

“[w]here, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason. This standard has been interpreted to mean that the relevant test is whether the evidence is sufficient, as a matter of law, to support the determination of the arbitrator, [and whether the determination] is rational and is not arbitrary and capricious”

According to ATIC, the arbitrators ignored explicit evidence that ATIC had submitted, failed to apply the proper evidentiary burdens, and rendered an award that was not final and definite that was prejudicial to petitioner (affirmation of petitioner’s counsel ¶ 62). Citing the standards applicable to an insurer’s motion for summary judgment on the ground of medical necessity, ATIC contends that, once it offered it peer review report of Dr. Skolnick, the burden should have shifted to respondent to rebut with evidence establishing that the services were medically necessary (see id. ¶¶ 21-23). ATIC contends that respondent failed to meet its burden because “Respondent offered no significant rebuttal to actually rebut the findings of Dr. Skolnick” (id. ¶ 34).

ATIC argues, “Dr. Skolnick submitted an addendum dated 3/7/19. In it, Dr. Skolnick directly addressed Dr. McMahon’s general statements concerning an alleged tear in the knee necessitating the surgery. Dr. Skolnick stated there was no right knee fracture or dislocation” (id. ¶ 31). According to ATIC, “[t]he no-fault arbitrator exceeded his bestowed powers as there was no basis simply to cast aside the entirety of petitioner’s evidence” (id. ¶ 38).

Respondent maintains that “ATIC’s evidence was not cast aside. It was carefully reviewed and found to be insufficient, in light of the facts and Respondent’s rebuttal (affirmation in opposition of respondent’s counsel ¶ 11). Respondent contends that petitioner’s disagreement with the arbitrator’s findings of fact is not a basis to vacate the award (id.). Respondent further argues, “Applicant was not required to prove that the motor vehicle [sic] exacerbated a pre-existing condition. That was ATIC’s burden if ATIC wanted to prove that the injury was not caused by the accident. . . .it is well-settled that exacerbation of a preexisting condition is compensable under no-fault.”

In reply, ATIC argues that the issue of causality was never considered (reply affirmation of petitioner’s counsel ¶ 7). ATIC submits that “the arbitrator failed to apply the rules in connection to a lack of causation defense” (id.. ¶ 10). According to ATIC, “lack of causation does not require a citation to medical rationales as to whether or not certain types of treatment should be administered. The causation issue is not whether or not a doctor should administer treatment” (id. ¶ 11). ATIC maintains, “the peer review doctor is not required to cite any medical authorization as to support his conclusion for lack of causation as the issue is not one regarding lack of medical necessity. The arbitrator confused the proof required with that of prima facie proof for a lack of medical necessity defense” (id. ¶ 17).

The court agrees with respondent.

“The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2d Dept 2002]). Where error of law is at issue, the [*5]test is “whether any reasonable hypothesis can be found to support the questioned interpretation. Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]); accord Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [2d Dept 1996]).

Here, ATIC fails to establish that the no-fault arbitrator’s award was so irrational as to require vacatur. First, the burden of proof applicable at trial involving medical necessity and an insurer’s burden on a motion for summary judgment are not described in the same terms.

“In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff [provider] who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary”

Here, it is abundantly apparent that the no-fault arbitrator ruled that respondent had met its ultimate burden of demonstrating that the services at issue were medically necessary by a preponderance of the evidence (see petitioner’s exhibit A, no-fault arbitrator award, at 5).

The no-fault arbitrator also found that “[ATIC] has not adequately demonstrated lack of causation” (no-fault arbitrator award, at 5). The no-fault arbitrator thoroughly considered the evidence. A reasonable hypothesis can be found to support this interpretation. Insofar as there was no dispute that respondent had established its prima facie case, ATIC “had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident” (A & A Dental, P.C. v State Farm Ins. Co., 19 Misc 3d 135[A], 2008 NY Slip Op 50709[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

The no-fault arbitrator rejected as conclusory the Peer Review Report of Dr. Skolnick with regard to the issue of causation. It would appear that the no-fault arbitrator concluded that the tear was caused by trauma, given that “the independent radiologist did not state with specificity that the meniscus tear is degenerative in nature” (see petitioner’s exhibit A, no-fault arbitrator award, at 5). ATIC essentially argues that the no-fault arbitrator should not have found that the tear was caused by trauma because Dr. Skolnick stated in his Addendum that there was no evidence of a fracture or dislocation. However, the no-fault arbitrator’s finding that ATIC did not meet its burden that the surgery was not causally related to the accident is consistent with the no-fault arbitrator’s credibility determinations about Dr. Skolnick and Dr. Fitzpatrick.

Contrary to ATIC’s argument, there is no basis to conclude that the arbitrator made a mistake of law by ignoring ATIC’s evidence that services rendered Rubin Gomez were not medically necessary; the arbitrator simply made a factual determination that they were medically necessary (Miller, 170 AD3d at 437). ATIC argues, in essence, that the arbitrator’s determination was an error of law because the arbitrator did not resolve issues of credibility in ATIC’s favor. “However, where, as here, the evidence is conflicting and room for choice exists, this Court may not weigh the evidence or reject the choice made by the arbitrator” (Matter of Powell v Bd. of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955-56 [2d Dept 2012]). “Obviously, if a court cannot ‘weigh’ the evidence, it cannot weigh credibility, which in [*6]the end is simply a component of that evidence” (Matter of McMahan & Co. [Dunn Newfund I], 230 AD2d 1, 5 [1st Dept 1997]).

The fact that the no-fault arbitrator accepted respondent’s affirmed rebuttal letter over Dr. Skolnick’s peer review report and Addendum presented an issue of Dr. Skolnick’s credibility for the factfinder to resolve. These are not errors of law, notwithstanding that the ATIC’s peer review report and other evidence in the record might support a contrary result. The no-fault arbitrator credited the written testimony of respondent’s physician over that of ATIC’s peer reviewer.

To the extent that ATIC argues that the award “went against the entire weight of the unrebutted evidence” (see petition ¶ 38),

“[a] master arbitrator’s powers of review do not encompass such a review of the facts, nor do they authorize him to determine the weight of the evidence. This is not to say that in making his determinations as to whether the arbitrator’s determination is correct, that the master arbitrator will conduct no review of the facts; rather, it means his review in this respect is limited to whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator”

Here, the master arbitrator correctly determined that the evidence was sufficient, as a matter of law, to support the original arbitration’s determination (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2d Dept 2008] [testimony of expert witness, who based his opinion upon his examination of defendant and his review of defendant’s relevant medical records, including, inter alia, CT scans and MRIs, was sufficient to establish that defendant’s condition was causally related to the accident]; cf. Advanced Orthopedics, PLLC v GEICO, 63 Misc 3d 136[A], 2019 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [record supported the dismissal of complaint because Civil Court found defendant’s expert witness credibly testified that the surgery was not causally related to accident in question]). Thus, the master arbitrator did not exceed his/their powers.

ATIC’s argument that the award was not final or definite is without merit. “An award is deficient in this regard and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy” (Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]). Here, the no-fault arbitration award determined ATIC’s and [respondent]’s rights and obligations, resolved the claims submitted to arbitration, and did not create any new controversies.^[FN1]

Therefore, ATIC’s petition to vacate the master arbitrator’s award is denied.

CPLR 7511(e) mandates confirmation of the award upon denial of an application to [*7]vacate or modify the award (Blumenkopf v Proskauer Rose LLP, 95 AD3d 647, 648 [1st Dept 2012]). Therefore, the award is confirmed.

The no-fault arbitrator awarded respondent the amount of $4,702.03, with interest from 1/21/2019, plus attorney’s fees (petitioner’s exhibit A, no-fault arbitrator award at 6-7). Interest on overdue payments is fixed by regulation at the rate of 2 per cent per month (11 NYCRR 65-3.9 [a]). The total amount of interest due on $4,702.03 from 1/21/2019 until 1/14/2020 (the date of the award) is $1,106.86(2% x $4,702.03 x 11 months 24 days). The amount of attorney’s fees awarded by the no-fault arbitrator is therefore $1,161.78(20% x [$4,702.03 + $1,106.86) (11 NYCRR 65-4.6 [d]).

In addition, the master arbitrator awarded $195 in legal fees for the master arbitration (see petitioner’s exhibit A, master arbitrator award).

Respondent is also entitled to recover costs of the proceeding in the amount of $50.00, for the amount of the judgment is more than $6,000, and no notice of trial has been filed (CPLR 8101; NY City Civ Ct Act § 1901 [a], [b] [1]).

Citing 11 NYCRR 65-4.10 (j) (4), respondent also requests that the court award attorney’s fees in the amount of $1,000, for 2.5 hours (calculated at a rate of $400 per hour) spent to oppose the petition (see affirmation in opposition of respondent’s counsel ¶ 19).

ATIC opposes the request, claiming that $400.00 is a “marquee rate for private litigation” (reply affirmation of petitioner’s counsel ¶ 24). ATIC argues that the hourly rate for attorney’s fees should not exceed the hourly rates of attorney’s fees for a master arbitration, which are capped at $65.00 an hour, and $650.00 in total (id. ¶¶ 24-27).

Respondent correctly indicates that it is entitled to recovery attorney’s fees incurred in the Article 75 proceeding. If a valid claim for first-party no-fault benefits is overdue, the claimant is entitled to recover reasonable attorney’s fees for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations (Insurance Law § 5106 [a]). No-fault regulations provide that “[t]he attorney’s fee for services rendered … in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR § 65-4.10[j][4] ). “The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [1st Dept 2020]).

ATIC’s argument raises a threshold issue of whether there any regulatory limits on amount of attorney’s fees incurred in connection with Article 75 proceeding to vacate or confirm a master arbitration award.

As ATIC points out, the no-fault regulations limit the amount of attorney’s fees recoverable for services rendered in connection with the master arbitration itself. For example, for preparatory services, the attorney is entitled to “a fee of up to $65 per hour, subject to a maximum fee of $650,” and “a fee of up to $80 per hour for oral argument before the master arbitrator” (see 11 NYCRR 65-4.10 [j] [2] [i], [ii]). For disputes subject to arbitration or court proceedings involving a “policy issue,” the no-fault regulations also limit the attorney’s fee for the arbitration or litigation of all issues to “a fee of up to $70 per hour, subject to a maximum fee of $1,400” (11 NYCRR 65-4.6 [c]; see Kamara Supplies v GEICO Gen. Ins. Co., 67 Misc 3d [*8]129[A], 2020 NY Slip Op 50414[U] [App Term, 1st Dept 2020]). ^[FN2]

However, there do not appear to be any no-fault regulations limiting the amount of attorney’s fees recoverable for services rendered in a proceeding taken pursuant to Article 75 of the CPLR to vacate or confirm a master arbitration award (see e.g. Matter of Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]).

In Matter of Hempstead General Hospital, the Appellate Division, Second Department implicitly endorsed the calculation of the attorney’s fees upon a reasonable hourly rate without any limitations, for services rendered in a proceeding to vacate or confirm a master arbitration award. There, the Supreme Court had determined that petitioner was entitled to counsel fees in vacating a master arbitration award, and that the petitioner’s counsel’s work was worth $175 per hour, for a total of $7,000 (179 AD2d at 646). However, the Supreme Court reduced the award to $756, on the ground that it would only award a fee on that portion of the work performed directly on behalf of the client (id.). On appeal, the Appellate Division, Second Department, modified the Supreme Court’s order to increase the award of counsel fees to the full amount of $7,000 (id.).

The court finds that the time that respondent’s counsel spent on this Article 75 proceeding and the hourly rate were reasonable. Accordingly, respondent is awarded $1,000.00 in attorney’s fees for services rendered in opposing the petition.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED and ADJUDGED and the petition to vacate the arbitration award (Motion Seq. No. 001) is DENIED, and it is further

ADJUDGED that the award of the master arbitrator Robert Trestman, dated March 24, 2020 rendered in favor of respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez against petitioner American Transit Insurance Company, affirming the award of the no-fault arbitrator Marice Glasser issued on January 14, 2020 is confirmed; and it is further

ADJUDGED that respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez, having an address at 876 Park Avenue, New York, NY 10075, do recover from petitioner American Transit Insurance Company, having an address at 5 Broadway, Freeport, New York 11520, the amount of $4,702.03, plus interest at the rate of 2% per month from the date of 1/21/2019 until 1/14/2020, in the amount of $1,106.86, plus attorney’s fees in the amount $1,161.78, plus $40.00 as reimbursement for a fee previously paid by respondent, plus attorney’s fees incurred in the master arbitration in the amount of $195.00, plus attorney’s fees incurred in this proceeding in the amount of $1,000.00, together with costs of this proceeding in the amount of $50.00, for the [*9]total amount of $8,255.67, and that the respondent have execution therefor.

This constitutes the decision, order, and judgment of the court.

____________/s/__________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Although not raised by petitioner, the court notes that the fact that the no-fault arbitration award did not specify an exact amount of interest or attorney’s fees awarded does not render the award indefinite, because the amounts may be ascertained through computation of simple arithmetic (see Matter of Hunter [Proser], 274 AD 311, 312 [1st Dept 1948], affd 298 NY 828 [1949]).

Footnote 2: “‘[P]olicy issues’ enumerated on the denial of claim form at bar are clearly limited to include only: (1) the policy was not in force on the date of the accident (box 3); (2) the injured person is excluded under policy conditions or exclusion (box 4); (3) the policy conditions were violated, which is limited to two categories involving late submission of a notice of claim (box 5); (4) the injured person is not an eligible injured person (box 6); (5) and the injuries did not arise out of use or operation of a motor vehicle (box 7)” (Kamara Supplies, 67 Misc 3d 129[A], 2020 NY Slip Op 50414[U], *1).

ATIC does not contend that the arbitration involved a “policy issue.” No “policy issues” were checked off as reasons for denial on the denial of claim form (see petitioner’s exhibit B).

Index No. CV-718889-16/KI

The plaintiff was represented by Michael Nathan, Esq., Lewin & Baglio LLP, 1100 Shames Drive, Westbury, New York 11590, (T) 516-307-1777 ext. 121, (F)516-307-1770, Mnathan@lewinbaglio.com.

The defendant was represented by Adam Waknine, Esq., Peter C. Merani, P.C., 1001 Avenue of the Americas, Suite 1800, New York, NY 10018, Phone: (212) 629-9690, Fax: (212)629-9664, E-Mail: awaknine@meranilaw.com.

After trial, held before me in the above captioned action on July 13, 2022, I find:

Plaintiff, James J. Kim, a licensed acupuncturist, commenced this no-fault action against defendant, Allstate Insurance Company (“Allstate”), following Allstate’s denial of plaintiff’s claims for no-fault benefits for acupuncture services provided from February 9, 2015, through December 7, 2015. Plaintiff’s assignor, Rick Greengus, was injured in an accident on December 7, 2013. Allstate denied the claims based upon the report of an Independent Medical Examination (“IME”) conducted by Dr. Thomas McLaughlin on March 13, 2014. At trial, Allstate defended their denials based on lack of medical necessity by solely relying upon the IME report and live testimony of Dr. McLaughlin. The plaintiff rebutted the denial through the live testimony of Dr. Kim, as well as by cross-examining Dr. McLaughlin about the contents of his IME report. Each party also submitted trial packets for the court’s consideration which were introduced into evidence on consent and without objection.

Dr. McLaughlin examined Mr. Greengus on March 13, 2014. At that time, Mr. Greengus had been receiving acupuncture services for approximately three months. Mr. Greengus complained of pain in his left shoulder and neck. Dr. McLaughlin referred to those complaints in his report as “non-descript” but did not specify what, if any, questions he asked that were designed to elicit a detailed description of Mr. Greengus’ symptoms. The report notes that Mr. Greengus indicated that his symptoms had not improved with care.

In his report, Dr. McLaughlin included a section on acupuncture treatment under the heading “Traditional Chinese Medicine (TCM) Discussion.” In relevant part, Dr. McLaughlin concludes:

Combined with a full history and inspection the TCM practitioner will also study the quality of the patient’s pulse and tongue in order to determine not only if pathology is present and the type it is, but in order to devise a treatment protocol. Traditional Chinese [*2]Medicine, acupuncture being one facet of it, is then employed in order to rebalance the body and aid in the facilitation of health and wellness. The treatments are administered by applying needles, in the case of acupuncture, to acupoints along channels that course throughout the body and promote a physiologic response. Nine of the fourteen body channels used are named after organ systems in the body. With respect to Mr. Rick Greengus’s pulse, which has a rate of 64bpm, his tongue, and the channels are unremarkable with regard to a Qi and/or blood stagnation disorder according to the principles of TCM.

Based upon his examination findings, Dr. McLaughlin concluded that no further acupuncture care was necessary because Mr. Greengus’ examination did not reveal any objective findings of dysfunction or discomfort. His trial testimony echoed those findings to a certain extent. He opined that standard practice for an acupuncturist would be to evaluate the patient by taking a history and checking certain relevant factors such as pulse, the condition of the tongue and blood stagnation. Dr. McLaughlin testified that periodic evaluation or revaluation is warranted when there is an ongoing course of treatment in order to determine whether the medical provider needs to adjust the treatment being provided (Tr at 15, 17).

The plaintiff rebutted Dr. McLaughlin’s findings through the testimony of Dr. Kim the provider who opined that continued acupuncture treatment was medically necessary due to continued neck pain, shoulder pain and lower back pain. Dr, Kim also referenced the same traditional Chinese Medicine diagnosis referenced in Dr. McLaughlin’s IME report, i.e., blood stagnation and tongue diagnosis. Dr Kim also testified that he performed through evaluations of Mr. Greengus prior to each treatment session.

After considering the testimony and evidence presented at this trial, I find that the plaintiff should have judgment in its favor. The defense being asserted by the defendant insurer is commonly known as a “IME cut-off”. The court finds this terminology, although widely used in no-fault litigation, to be imprecise and arguably misleading. To the defendant, IME cut-off is the sole proper basis for the denials. The assertion is that after March 14, 2014, based upon the findings of Dr. McLaughlin after the IME, Mr. Greengus was perfectly healthy and no longer required any further treatment, specifically acupuncture and chiropractic related. The defendant would have the court believe that the injured party’s health and condition is frozen in time as of the date of the IME and, absent evidence from the plaintiff that rebuts the findings of the IME, the plaintiff has failed to meet its burden for recovery of no-fault benefits. This misstates the purpose and/or probative value of an IME.

An IME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party’s medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert’s prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.

An IME cut-off is not a complete defense to the action. While an IME can demonstrate a lack of medical necessity for future treatment, it does not, by itself, conclusively demonstrate that any future treatment would not be medically necessary. Instead, the IME merely shifts the burden to the plaintiff to demonstrate, by a preponderance of the credible evidence, that the treatment at issue was medically necessary (see Amato v State Farm Ins. Co., 40 Misc 3d 129(A) [App Term 2d Dept 2013], Unitrin Advantage Insurance Company v Lake Chiropractic, PLLC, [*3]64 Misc 3d 1201[A] [New York County Civ Ct 2019]; Amato v State Farm Ins. Co., 30 Misc 3d 238, 242 [NY Dist Ct 2013]; All-In-One Med. Care, P.C. v Govt. Employees Ins. Co., 43 Misc 3d 726, 734 [NY Dist Ct 2014]).

The defendant maintains that by not recognizing the IME as a fixed cut-off date for no-fault benefits deemed not medically necessary, the Court is allowing for the reimbursements of benefits indefinitely so long as the provider self-certifies that the treatment is providing medical benefits to the injured party. This is not the Court’s intention nor is it the practical result. Again, the only effect of the pre-claim IME on this litigation was to shift the burden to the plaintiff-provider to show that the treatment was medically necessary. If the defendant subsequently felt the need to try to further limit the scope of future treatment, they could have requested a supplemental IME, an EUO of the provider, or they could have had their expert conduct a peer review of all the post-IME treatment records. Instead, the defendant just denied the bills and relied on a single pre-treatment IME. The defendant is entitled to rely on that single IME if they wish, but the effect is no different than any other denial based on the alleged lack of medical necessity. It simply shifts the burden to the plaintiff, who can then rebut with credible testimony and shift the burden back to the defendant insurer.

That is exactly what happened here. Dr. Kim credibly testified that he conducted an evaluation of the patient each time the patient came to see him before providing any treatment (Tr at 55, 60). This testimony is bolstered by the records in evidence of Dr. Kim’s treatment of the patient prior to the IME – which each contain notes regarding the current diagnosis of the patient and notes of what was evaluated. (Plaintiff’s Exh. D, pages 182-187, 332-356, 422-427, 451-456). The court credits the testimony of Dr. Kim that further medical treatment was necessary for the injured assignor, over the testimony of Dr. McLaughlin, that it was not medically necessary. The court finds that Dr. Kim properly performed additional evaluations of the patient, consistent with the very same standards of traditional Chinese Medicine referenced in Dr McLaughlin’s report, and Dr. Kim was in possession of both objective and subjective findings which correlated to support the conclusion that continued treatment was medically necessary. Dr. Kim possessed more information and was in a better position to make the determination than Dr. McLaughlin. I find that Dr. Kim’s testimony is sufficient to demonstrate, by a preponderance of the credible evidence, that the treatments at issue were medically necessary.

Accordingly, judgment is rendered for the plaintiff in the amount of $2018.77 — the amount the parties stipulate is correct under the fee schedule — plus statutory interest and attorney fees.

The clerk may enter judgment.

Index No. CV-711172-18/QU

Plaintiff’s Counsel:
Lewin & Baglio
1100 Shames Drive, Suite 100
Westbury, NY 11590

Defendant’s Counsel:
Travelers Insurance Company
3 Hunting Quadrangle
Melville, NY 11747

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

II. Background

In a summons and complaint filed September 7, 2018, Plaintiff sued Defendant insurance company to recover $3,116.03 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Laporte from February 4 to May 4, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Granov, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Defendant timely paid Plaintiff’s claim according to the applicable fee schedule (CPLR 3212[b]). Plaintiff cross-moved for summary judgment on its claim against Defendant. The motions were assigned to this Court for determination on March 16, 2022.

III. Discussion

Automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

Defendant requested that the court take judicial notice of the various fee schedules. The party requesting judicial notice must furnish the court “sufficient information to enable it to comply with the request” (CPLR 4511[b]; see Ponnambalam v Sivaprakasapillai, 35 AD3d 571, 574 [2d Dept 2006]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U] *1 [App Term 2d Dept 2017]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] * 2 [App Term 2d [*3]Dept 2011]). Here, Defendant presented a copy of the fee schedules upon which its witness relied (see Motion, Granov Aff., Ex. D).

Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). To support its motion, Defendant relied on the affidavit of Marchitte, Defendant’s Medical Appeals Analyst sworn September 24, 2019, in which she concluded that, based on the fee schedule, Plaintiff’s bills for the medical equipment exceeded the applicable fee schedule (Motion, Granov Aff., Ex. E).

To qualify as an expert, a witness must possess skill, training, knowledge, and experience to allow an assumption of the reliability of the opinion rendered (Price v. New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Matott v. Ward, 48 NY2d 455, 459 [1979]; DiLorenzo v. Zaso, 148 AD3d 1111, 1112-13 [2d Dept 2017]; Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 847 [2d Dept 2016]). In her affidavit, Marchitte attested that her position as a Medical Appeals Analyst necessitated that she became familiar with specified billing codes. Since Marchitte did not identify how she became familiar with the billing codes whether through education, training or apprenticeship, she failed to specify her qualifications, which are necessary to establish that she was an expert (Chtchannikova v. City of New York, 174 AD3d 572, 573 [2d Dept 2019]; DiLorenzo v Zaso, 148 AD3d at 1115; Leicht v. City of NY Dept of Sanitation, 131 AD3d 515, 516 [2d Dept 2015]; Currie v Wilhouski, 93 AD3d 816, 817 [2d Dept 2012]). Since Defendant failed to support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount in controversy (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupunctrure, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Therefore, the court denies Defendant’s Motion for summary judgment.

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). To support its Cross-Motion, Plaintiff essentially relied on Defendant’s denial of claim forms which were sufficient to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). In our instant case, Defendant’s denial of claim forms demonstrated partial payment of defendant’s claims and timely denial of the remainder of the claims (see Motion, Granov Aff., Ex. F). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claims against Defendant, the court denies Plaintiff’s Cross-Motion for summary judgment.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

______________________________________
Honorable WENDY CHANGYONG LI, J.C.C.

CV-708764-2020/KI

Attorney for Petitioner: Oleg Rybak, Esq.The Rybak Firm, PLLC1810 Voorhies Avenue, 3rd Floor, Suite 7 Brooklyn, NY 11235
Attorney for Respondent:Lola Klis, Esq. Law Office of Goldstein, Flecker & Hopkins 2 Huntington Quadrangle, Suite 2N01 Melville, NY 11747

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment, numbered as they appear on EDDS.

After argument, Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment are consolidated for disposition purposes only and decided jointly as follows:

In this action seeking assigned no-fault benefits, SB Chiropractic, P.C. a/a/o Rivera, Eddie (“Plaintiff”) seeks summary judgment against Geico Insurance Co. (“Defendant”), or in the alternative, an order limiting the issues of fact for trial and dismissing Defendant’s affirmative defenses. Defendant opposes the motion and cross-moves for summary judgment in its favor.

Plaintiff alleges that it provided medical care to Eddie Rivera (“Assignor”) from July, 2017 through April 2018 after a July 9, 2017 automobile accident. It is undisputed that Plaintiff sent ten bills to the Defendant insurance carrier for this medical care (Plaintiff’s Motion Ex. 3). Each bill includes a list of dates when care was provided, a Current Procedural Terminology code (“CPT”) designated by the Worker’s Compensation Fee Schedule (“WCFS”) to be used for the procedure or procedures that were performed on that date, and a monetary amount billed. (Id.) The amount billed is derived from the multiplication of the Relative Value Unit (“RVU”) which is assigned to the CPT code by a conversion factor based upon where in New York State the services were rendered (see Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A], [App Term 2016])^[FN1] .

Defendant asserts that it partially paid or denied each of these bills, by sending Plaintiff”Denial of Claim forms” within 30 days of receipt (11 NYCRR 65-3.8[c]; see Defendant’s Ex C). Each Denial of Claim form includes the amount Defendant reimbursed the Plaintiff for each date of service, along with a note explaining the reasons for any reduction in reimbursement from the amount requested (Defendant’s Ex. C). Defendant’s cross-motion contains both an affirmation and an affidavit from a “Claims Representative,” which explain the computations utilized for each reimbursement, partial reimbursement, and denial (see Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

Plaintiff argues that it is entitled to summary judgment because it submitted claim forms to the Defendant, Defendant failed to issue a timely denial of claim form and/or the form was conclusory, vague, or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, 2011 [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011], Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501, [2015][“A plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer”]). Defendant argues that it properly and timely mailed Denial of Claim forms, and that each partial payment or denial was proper. Therefore, the issue is whether Defendant’s denials are sufficient to defeat Plaintiff’s motion for summary judgment, and whether they entitle Defendant to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011]).^[FN2]

The standard for summary judgment is clearly articulated in CPLR § 3212(b) which provides that “the motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in [*2]directing judgment in favor of any party.” The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

In order to succeed on its motion, Defendant must establish that it mailed the Denial of Claim forms within 30 days of receiving Plaintiff’s bills. To establish that denial of claim forms were mailed on time, the insurance company may rely upon the affidavit of a claims associate. Proof of mailing may be shown based on a mailing receipt, or, that the item was mailed pursuant to the affiant’s standard office practices and procedures (GL v Allstate Ins. Co., 2018 NY Slip Op 50842[U] [2d Dept 2018]). The claim representative must demonstrate, through an affidavit, knowledge of the insurance company’s standard office practices or procedures, and that the items were properly addressed and mailed pursuant to these practices or procedures (St. Vincent’s Hosp. of Richmond v Govt. Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]). Crucially, an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim (11 NYCRR 65-3.8[h]). Proof of a standard office practice and procedure gives rise to a presumption of mailing and receipt (Cit Bank N.A. v Schiffman, 36 NY3d 550 [2021]). To rebut the presumption,

“[T]here must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient” (Id).

Defendant attaches to its cross-motion an affidavit from Cleone Victor, (“Victor Affidavit”) who avers that they are a “claims associate” in Defendant’s Woodbury, New York, office (Defendant’s Cross Ex. B). The Victor Affidavit recounts, in detail, Defendant’s standard office procedures for mailing and processing bills, that Plaintiff’s bills were processed according to these procedures, and that Denial of Claim Forms were processed according to these procedures. Cleone Victor describes Defendant’s application of the ATLAS Claim System to process bills and denials like the ones submitted by Plaintiff here (Defendant’s Cross Ex. B) and how the system is designed to ensure that the denials arrive to the Defendant within the required time.

Plaintiff argues that the Victor Affidavit is insufficient because it fails to lay a proper foundation for Victor’s knowledge of Defendant’s mailing processes. But, Plaintiff’s objections are mainly technical, grammatical arguments rather than based on merit, and, Plaintiff misstates the Victor Affidavit multiple times; Plaintiff argues that Cleone Victor “never asserts that she has knowledge of what procedures were in place at the time mailing purportedly occurred” and that “Victor states that she has been employed by Geico in the Woodbury, New York office since on or about January 1995” (Plaintiff’s Aff in Opp., 72). The Victor Affidavit, however, clearly states: “[t]he procedures described in this affidavit were in place and were utilized by GEICO in the Woodbury Office at the time that the documents relating to this matter were created, printed and mailed” and, “I have been employed by GEICO in the Woodbury, New York office since on or about June 2005” (Defendant’s Cross Ex. B). Plaintiff’s remaining [*3]arguments similarly lack a factual basis necessary to rebut the presumption of timely mailing; Defendant has demonstrated that it timely mailed the Denial of Claim forms in this case.

Plaintiff also maintains Defendant has not met its burden on summary judgment because Defendant failed to establish it properly reimbursed Plaintiff for its bills. To establish proper reimbursement pursuant to the WCFS, the Defendant may submit an affidavit setting forth the calculation (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]). Notably, an expert affidavit is not required to support fee schedule reductions (Id). Rather, the Defendant needs to prove that it multiplied the RVU assigned to the CPT code for the services rendered by a conversion factor based upon where in New York State the services were rendered (Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A]), which, in this case, is $5.78.

In addition to the Victor Affidavit, Defendant’s cross-motion includes an affirmation in support (“Affirmation”) which explains the method Defendant used to calculate the proper reimbursement of the Plaintiff’s bills. The Affirmation and Victor Affidavit explain that based upon the WCFS formula, Plaintiff often billed Defendant in excess of the permissible amount. For example, WCFS Ground Rule 2 specifies that reimbursement for an initial evaluation shall be limited to 13.5 RVUs (Defendant’s Cross Ex. B). On 7/10/2017, however, Plaintiff billed 14.04 RVU’s for the initial evaluation: one unit of code 99203, carrying an RVU of 9.47, and one unit of code 98940, carrying an RVU of 4.57. Defendant reimbursed Plaintiff for the maximum permissible amount, 13.5 RVUs, and denied the remaining .54 RVUs. As provided below, Victor’s Affidavit and Defendant’s Affirmation articulate the application of the WCFS to each of Plaintiff’s bills and therefore an expert affidavit is not required (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

The Affirmation and the Victor Affidavit explain Defendant’s processing of Plaintiff’s ten bills as follows:

• Defendant received Plaintiff’s first bill on August 10, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $530.12 on July 10-14, 17-21, 24-28, 31 of 2017 and August 1-2 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on August 30, 2017, determined that Plaintiff was entitled to $527.00, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS permits reimbursement for only 13.5 RVU per day, and Plaintiff billed for 14.04 RVU (Defendant’s Cross Ex. C at 77-79).

• Defendant received Plaintiff’s second bill on September 18, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $269.17 on August 23-24, and 28-30 of 2017 and September 7-8 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on October 10, 2017, determined that Plaintiff was entitled to $206.77, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day, for “modalities and procedures” and Defendant had already reimbursed a separate provider, Healthway Medical Care, P.C., for 7.65 RVU on each date. Defendant includes the bills and reimbursements to the separate provider for services provided to Assignor on the same date. The court notes that Defendant actually reimbursed more than what was required on this bill; Defendant paid 4.6 RVU for the date of service when .35 RVU was all [*4]that remained of the allotment of 8 RVU (Defendant’s Cross Ex. C at 87-88).

• Defendant received Plaintiff’s third bill on October 23, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $361.65 on October 2-5, 10, 12-13, and 16 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 8, 2017, determined that Plaintiff was entitled to $314.42, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and the Defendant had already paid a different provider 7.65 RVU. (Id.) In addition, the WCFS provides for a maximum reimbursement of 11 RVU for a re-evaluation, but the Plaintiff had billed for 13.46 RVU (Defendant’s Cross Ex. C at 100-102). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received the Plaintiff’s fourth bill on November 13, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $219.64 on October 18, 20, 24, 26, and 30 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 30, 2017, determined that Plaintiff was entitled to $191.02, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on three of the four dates of service included in that bill (Defendant’s Cross Ex. C at 115-116). The court notes that Defendant overpaid for certain procedures on this bill.

• On November 20, 2017, Frank J. McNally, a New York State licensed chiropractor, and Rachel Saperstein, a New York State licensed acupuncturist, both conducted an Independent Medical Evaluation (“IME”) of Assignor, on behalf of Defendant. After these evaluations and a review of certain delineated medical records, both concluded that no further chiropractic or acupuncture treatment was medically necessary (Defendant’s Cross Ex. D). A “Blanket Denial of Claim” form was generated on November 27, 2017 and notice was provided to Plaintiff that further treatment was not medically necessary (Defendant’s Cross Ex. C). The form also provided that all benefits for treatment would be denied effective December 3, 2017 (Id).

• Defendant received Plaintiff’s fifth bill on December 4, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $323.68 on November 2, 6, 8, 10, 14-15, and 27 of 2017 (Defendant’s Cross Ex. C). Respondent issued its Denial of Claim form on December 18, 2017, determined that Plaintiff was entitled to $266.44, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement because the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on six of the seven dates of service included in that bill (Defendant’s Cross Ex. C at 129-130). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received Plaintiff’s sixth bill on December 22, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $138.72 on November 28 of 2017 and December 1, and 4 of 2017 (Defendant’s Cross Ex. C). Defendant [*5]issued its Denial of Claim form on January 8, 2018, determined that Plaintiff was entitled to $73.40, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement for two reasons: first, the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on two of the dates of service included in that bill (Defendant’s Cross Ex. C at 143-145). The remaining procedures were denied based upon the IME reports which determined that there was no further “acupuncture, chiropractic, massage therapy, diagnostic testing and supplies treatment” necessary as of December 3, 2017 (Defendant’s Cross Ex. D).

• Defendant received Plaintiff’s seventh through tenth bills on January 15, 2018, February 5, 2018, March 26, 2018, April 19, 2018, which were all timely denied, on January 19, 2018, February 12, 2018, April 4, 2018, May 1, 2018, respectively, based upon the IME reports and the accompanying Blanket Denial (Defendant’s Cross Ex. C at 158-182), as well as the WCFS.

Plaintiff attaches a rebuttal fee schedule affidavit (Plaintiff’s Opp. Ex. 6), to rebut the Victor Affidavit and Defendant’s use of the WCFS. However, the affidavit purports to, but does not actually use the billing codes in Plaintiff’s bills. Rather, the affidavit explains why Plaintiff purportedly billed for medical procedures using codes 97799, 97810, 97811, and 99204 when in fact the bills seek reimbursement for procedures utilizing codes 99203, 98940, 98941, 99212, and 97139. As such, Plaintiff’s affidavit does not rebut, or even relate to, the Victor Affidavit. Furthermore, the Defendant’s fee schedule denials in this case do not rely upon the billing codes. Defendant denied payment of these bills because Plaintiff billed more than the maximum RVU per day per the WCFS Ground Rules, or Defendant paid a different provider for treatment performed on Assignor on the same date (Defendant’s Cross Ex. B). Accordingly, the rebuttal fee schedule affidavit does not successfully challenge the Defendant’s use of the WCFS. The court finds Defendant’s use of the WCFS proper.

Plaintiff also challenges Defendant’s denial of claims based upon lack of medical necessity. Generally, Plaintiff’s bills carry a presumption of medical necessity (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2d Dept 2009]). On summary judgment, Defendant has the burden to rebut this presumption (Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], [App Term 2015]). If rebutted, the burden shifts back to the Plaintiff to demonstrate that the procedures were medically necessary (Id). Plaintiff argues that Defendant has not rebutted the presumption of medical necessity, and that Defendant has failed to provide a sufficient foundation for the authority of the IME reports.

The first IME report, written by Frank J McNally, D.C., a New York state licensed chiropractor, finds that “[t]here is no need for further chiropractic treatment. There is no need for further diagnostic testing, household help, medical supplies, special transportation, or massage therapy, from a chiropractic standpoint.” (Defendant’s Cross Ex. D). Dr. McNally specifies that the Assignor’s diagnosis is “[r]esolved cervical sprain/strain…[r]esolved lumbar sprain/strain.” (Id). He further notes that “[t]he claimant is able to work if he chooses to seek employment, from a chiropractic standpoint” (Id). Similarly, Rachel Saperstein, L.Ac. concludes that “no further acupuncture treatment is recommended or necessary…” (Defendant’s Cross Ex. D). She also notes “[t]he [Assignor] does not appear to be in any acute distress or discomfort…[a]mbulation and gait is normal, and the [Assignor] moves freely and without the assistance of any aid or appliance” (Id). These IME reports each provide a detailed accounting [*6]of the signatory’s personal evaluation of Assignor based upon documents specified and answers provided by the Assignor at the evaluation.

Plaintiff argues that the IME’s do not “explain how the treatment or services provided were ineffective and cite medical literature and standard practices in the community to support the opinion” (Plaintiff’s Opp., 37). However, Defendant’s IME’s do not state that the medical treatment provided was ineffective; on the contrary, they both state that the issues that the Assignor complained about have been resolved, and that Assignor does not require any further medical treatment for the condition caused by the accident. Accordingly, Plaintiff’s argument is misplaced. Plaintiff also argues that the IME reports are inadmissible because the physician’s signature was “computerized, affixed, or stamped” (Plaintiff’s Opp., 48). However, the signature pages of the affidavits clearly show that the signatures were handwritten and notarized.

The court finds Defendant has rebutted the presumption of medical necessity. The burden therefore shifts back to the Plaintiff to demonstrate medical necessity. Plaintiff submits an “Affidavit of Medical Necessity” from Mark Tischler, D.C., the owner of the Plaintiff corporation, which provides, in vague and conclusory terms, the benefits of acupuncture treatment, and the alleged weaknesses and shortcomings of Defendant’s IME reports (Plaintiff’s Opp. Ex. 1). Dr. Tischler defends the medical necessity of the “acupuncture treatments” but does not mention the medical necessity of the chiropractic treatments Plaintiff is seeking reimbursement for. Moreover, Defendant does not claim that all of the treatments rendered were medically unnecessary. Rather, the only treatments denied for lack of medical necessity were the treatments rendered after the IME reports were issued. Defendant also has produced a report from both a licensed chiropractor and a licensed acupuncturist to rebut the presumption of medical necessity. However, the only relevant portion of the Tischler Affidavit which relates to the post-IME condition of the Assignor is:

“[a]fter the IMEs performed by [D]efendant, Rivera, Eddie returned to my office, maintained that he still experienced significant pains and discomfort, and required medical treatment for injuries he suffered in the accident. Having re-evaluated Rivera, Eddie post-IME evaluation I concluded that he was still suffering from the effects and injuries sustained in the accident and further treatment was required given the fact that it reduced her [sic] pain.” (Plaintiff’s Opp. Ex. 1, 27)

These conclusory statements do not meet the burden of demonstrating that the treatments provided were medically necessary as the Tischler Affidavit does not describe Assignor’s physical condition, nor provide details of which medical treatments were necessary at that time (Dayan v Allstate Insurance, 49 Misc 3d 151[a]). As such, Plaintiff has not sufficiently demonstrated the medical necessity of the post-IME medical treatment on summary judgment (Id).

By submitting a detailed, fact-specific and comprehensive set of papers, Defendant has eliminated material issues of fact from this case and is entitled to summary judgment as a matter of law. Defendant’s Denial of Claim forms clearly demonstrate that Plaintiff submitted ten bills to Defendant. Certain bills were accurately reimbursed according to the WCFS for the medical care provided to Assignor, and certain bills were partially paid based upon the basic math required by the WCFS. Certain bills were partially denied based upon prior payment to a separate provider for care rendered on that same date. The calculations are clearly explained in the Victor affidavit and the Defendant’s Affirmation in support. Furthermore, certain bills were denied based upon a credible and unrebutted lack of medical necessity. In fact, Defendant [*7]concedes that it actually overpaid Plaintiff on multiple bills. Accordingly, Defendant has met its burden, and its motion for summary judgment is granted pursuant to CPLR 3212. Plaintiff’s motion for summary judgment, or to limit the issues of fact for trial is denied in its entirety. This action is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Footnotes

Footnote 1: Neither party disputes that the appropriate conversion factor according to the WCFS in this case is Region IV, in the amount of $5.78 (Defendant’s Cross Ex E 211-212).

Footnote 2: While Plaintiff argues that Defendant’s defenses should be dismissed, this blanket argument is not supported by any facts or specificity and that branch of Plaintiff’s motion is dismissed.