District Court of Nassau County, First District

1757/06

Morris, Duffy, Alonso & Faley

La Sorsa & Beneventano

Randy Sue Marber, J.

The defendant, Motor Vehicle Accident Indemnification Corporation (hereinafter “MVAIC”), moves for an order granting summary judgment and dismissing the plaintiff’s complaint, pursuant to CPLR §3211 and 3212. The plaintiff, opposes the motion and the defendant has served a reply.

The plaintiff’s assignor, Flerida Erazo, was allegedly involved in a motor vehicle accident on January 27, 2003. Specifically, it is alleged that Ms. Erazo was a pedestrian when she was struck by an unknown vehicle. Thereafter, on January 31, 2003, February 3, 2003, February 7, 2003, February 10, 2003, February 15, 2003, February 22, 2003, February 27, 2003 and March 14, 2003, Ms. Erazo received acupuncture treatment from the plaintiff, Akita Medical Acupuncture, PC. An assignment of benefits was executed on January 31, 2003 (see, Exhibit “C”). On or about December 15, 2003, the plaintiff alleges that it submitted claims for no-fault payments to MVAIC and mailed them to MVAIC at 110 William Street, New York, NY 10038. To date, the plaintiff claims that no payment has been made, nor has there been a valid, timely denial or a proper request for additional verification. The plaintiff instituted this action to recover unpaid medical bills in the sum of $1,080.00. The plaintiff submits that it filed a notice of intention to make a claim with MVAIC. However, in opposition, the defendant alleges that the plaintiff failed to satisfy a condition precedent to coverage, thus it was not required to issue a denial or payment.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the Court, as a matter of law, in directing judgment in its favor (see, CPLR §3212[b]). The [*2]burden then shifts to the non-moving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial (see, CPLR §3212[b]; see also, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In the instant motion, the defendant alleges that “…coverage was nonexistent with MVAIC as plaintiff’s assignor failed to comply with the reporting requirements of Insurance Law Article 52, by neglecting to provide (a) a police report; and (2) a notarized household affidavit, a prerequisite to MVAIC coverage…” (see, Affidavit of David Shnayderman). Accordingly, the defendant has made out a prima facie showing of its entitlement to summary judgment as a matter of law.

In opposition, the plaintiff, in an effort to meet its burden of raising a triable issue of fact, asserts that it satisfied the condition precedent to qualify for MVAIC benefits because it failed its notice of claim within 180 days of the accrual of the cause of action. The claim form was mailed to MVAIC, on or about December 15, 2003, requiring MVAIC to pay or timely deny the bill. The plaintiff applies the standard generally applied in Insurance Law Article 51 actions. In a no-fault insurance action, a medical provider must submit evidentiary proof that the appropriate claim forms were mailed, that the forms were received by the insurer and that the payment of no-fault benefits was overdue (see, Mary Immaculate Hospital et al v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept 2004]; see also, 11 NYCRR §65-3.3[d]; §65-3.5[a]). However, here, prior to a review pursuant to Article 51, the plaintiff must first comply with Article 52.

The purpose of MVAIC is to pay bodily injury damages and no-fault benefits to “qualified”victims of motor vehicle accidents caused by uninsured motorist. In order to recover MVAIC benefits, the injured party must be eligible for MVAIC benefits, which requires that the party not have any other available insurance covering its claim and that the accident is of the nature contemplated by MVAIC. Upon proving that the claimant’s accident was of a type contemplated by MVAIC, the injured party must then be a “qualified person”, defined by MVAIC, as “…someone other than (1) an insured, or (2) the owner of an uninsured motor vehicle and his/her spouse when a passenger in such vehicle.”

A qualified person is required to provide MVAIC with notice of the claim. Insurance Law §5208(2)(a), “Notice of Claim”, states, in relevant part:

(A) Any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace, or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation, an affidavit stating that:…

(B) The fact that the accident was not reported within twenty-four hours after the occurrence as required by subparagraph (A) hereof shall not prejudice the rights of the person if it is shown that it was not reasonably possible to make such a report or that it was made as soon [*3]as was reasonably possible.

Once a qualified person has complied with the requirements of Insurance Law Article 52, then that person will be considered a covered person and will be entitled to the rights that a person under Insurance Law Article 51 is entitled to regarding no-fault benefits.

MVAIC is a statutory creation designed to provide no-fault benefits to injured individuals only when there is no other insurance available. In this case, the claimant has not provided the defendant with a copy of the police report regarding this accident, or otherwise provided the defendant with proof that the claimant complied with any of the other report requirements pursuant to Article 51. Since the claimant has not verified that the alleged accident ever occurred or that it was reported to the police within 24 hours, the claimant is not qualified to receive MVAIC benefits.

This Court finds that complying with the “statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (see, A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U, 2-3 (NY Misc 2006); Insurance Law §5221[b][2]; Ocean Diagnostic Imaging v. Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137A, 308 NYS2d 19, 2005 NY Slip Op 51271U [App Term, 2d & 11th Jud Dists]). Accordingly, MVAIC’s failure to timely deny plaintiffs’ claims does not preclude the dismissal of the plaintiffs’ causes of action based upon lack of coverage (A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 2006 NY Slip Op 50139U; see, Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199-200, 681 NE2d 413, 659 NYS2d 246 [1997]).

Accordingly, the defendant’s motion for summary judgment is granted and the cause of action for $1,080.00 is dismissed.

So ordered:

DISTRICT COURT JUDGE

Dated:December 5, 2006

cc:

jcm

District Court of Nassau County, Third District

3901/04

Bonnie P. Chaikin, J.

In this action for recovery of assigned first party no-fault benefits, plaintiff moves for an order pursuant to CPLR §3212, granting summary judgment in its favor against the defendant. For the reasons set forth below, the motion is granted.

In this type of action, plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g][3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]; A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 781 NYS2d 818 [S Ct NY App Term 2004]).

In this case, it is undisputed that the bill for an MRI in the sum of $879.73 was received by the defendant on May 24, 2004, and that the denial was dated November 1, 2004. (See NF-10 annexed to the moving papers.) Thus, plaintiff has established its prima facie entitlement to summary judgement in its favor.

Once the movant demonstrates a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact that would require a plenary trial of

the action (see, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In opposition to this motion, defendant alleges that the claim was denied because it arose from a staged event. It supports this allegation with an attorney’s affirmation, an affidavit by Allstate special investigator Susan Denicola, as well as copies of the EUO transcripts of the assignor and her passenger in the vehicle at the time of the accident.

It is now well established that an untimely denial of claim will not preclude a lack of [*2]coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 659 NYS2d 246 [1997]). However, the insurer must do more than simply allege that it has a well founded belief. As the Court explained in Mount Sinai v Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 (2d Dept 1999), the burden is on the insurer “to come forward with proof in admissible form to establish the fact’ or the evidentiary found[ation for its] belief. Applying these principles to the case at bar, it is clear that the burden is on Allstate to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the instant claim arose from a staged incident rather than a covered accident. Based upon the documents submitted, defendant fails in this regard.

The sworn statement of special investigator Denicola alludes to “information … acquired

that indicates the possibility that the accident was intentionally caused to defraud insurance companies, in general, and Allstate, in particular”, but Investigator Denicola fails to reveals such information.She relies wholly upon the EUOs annexed to the opposition papers, pointing to their inconsistencies and alleged deficiencies.

The court has read both EUOs and is not persuaded that they support a finding that the accident at issue was a staged incident.

Accordingly, the court finds that defendant has failed to come forward with proof in admissible form to show either a staged event or raise a material issue of fact that would necessitate a denial of this motion. There being no triable issues of fact regarding the defendant’s failure to pay or properly deny plaintiff’s claim within thirty days of receipt of said claim, summary judgment is granted in favor of the plaintiff.

The plaintiff is awarded the sum of $879.73, together with interest at the statutory rate of 2% per month from June 24, 2004, plus attorneys fees equal to 20% thereof, not to exceed $850.00. [Insurance Law §5106(a); 11 NYCRR §65-3.9 (a) and ] and 11 NYCRR §65-4.6(e)].

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

____________________________

District Court Judge

Dated:October 13, 2006

cc:Israel, Israel & Purdy, LLP

Stern & Montana, LLP

District Court of Nassau County, First District

31747/03

DASH & BURNS, ESQS., 400 JERICHO TURNPIKE, JERICHO, NY, ATTORNEYS FOR PLAINTIFF; FREIBERG & PECK, LLP, 12 EAST 41ST ST., NEW YORK, NY 10017, ATTORNEYS FOR DEFENDANT

Randy Sue Marber, J.

The plaintiff moves for an order granting summary judgment against the defendant, pursuant to CPLR 3212. The defendant cross-moves for an order (1) changing the venue of this action from Nassau County to Sullivan County, (2) for dismissal of the action based upon improper venue, or, in the alternative, (3) for an order granting summary judgment against the plaintiff. The underlying cause of action seeks a judgment for over due no-fault benefits, statutory interest and attorney’s fees as a result of medical testing services allegedly rendered by the plaintiff to Annette Brown as a result of a motor vehicle accident which occurred on December 4, 2002.

In the cross-motion, the defendant argues that the plaintiff is located in Sullivan County and that the defendant “maintains its main place of business” in Albany, New York. In opposition to the cross-motion, the plaintiff claims that the defendant is precluded from making this request because the motion is untimely. Notwithstanding the arguments set forth in the motions, the Court does not have jurisdiction to transfer actions to different counties. Pursuant to UDCA §306, the only jurisdiction conferred on the Court is to transfer within the different districts within the same county. Accordingly, that branch of the defendant’s motion for a change of venue is denied.

As to the plaintiff’s motion for summary judgment, the plaintiff contends that its claim for no-fault benefits was timely forwarded to the defendant and that the defendant neither paid the claim within the allotted statutory period of thirty (30) days nor extended the time period by requesting [*2]additional verification on the prescribed forms. Thus, the plaintiff contends that the defendant is now precluded from denying coverage and that the plaintiff

Page 2

Index No. SP 31747/03

is entitled to summary judgment as no remaining unresolved questions of fact exist. In support of its motion, the plaintiff submitted an incomplete copy of the denial of claim form. As such, the plaintiff cannot properly establish a prima facie case. The moving papers are deficient pursuant to CPLR 3212(b). Further, no proof of mailing has been furnished by the plaintiff.

In opposition to the plaintiff’s motion, and in support of the defendant’s cross-motion for summary judgment, the defendant states that it allegedly received the plaintiff’s claim form on January 10, 2003 and again on January 21, 2003 and that it timely denied the claim by forwarding an NF-10 denial form to the plaintiff on January 24, 2003. (See Affidavit of Christine A. Benda, Esq.).

The apparent sequence of events relative to the submission and handling of this claim is as follows:

1/21/03Bill received by the defendant

1/24/03Denial issued by defendant regarding improper assignment

3/19/03Claim re-submitted by plaintiff with assignment

4/9/03Denial issued by defendant based upon peer review

While the defendant claims that it generated a denial on January 24, 2003, because the plaintiff’s assignor failed to submit a properly executed assignment of benefits, said denial was, according to the exhibits furnished with the cross-motion, in fact, not issued until April 9, 2003. It is only in defendant’s reply papers that a copy of the earlier denial is annexed. This is patently improper on a motion for summary judgment. Notwithstanding that the defendant received a properly executed assignment on March 19, 2003, the defendant has not submitted proof along with its cross-motion that it followed the proper procedure for making a timely valid verification request (see 11 NYCRR 65-5.3).

Defendant’s motion to dismiss for improper venue, is actually seeking to dismiss because of “lack of long arm jurisdiction” pursuant to CPLR 3211(a)(8) and UDCA 404. Nassau County is the proper venue to entertain this motion. The plaintiff commenced this action by serving a summons and complaint upon the defendant by serving the New York State Superintendent of Insurance in Albany, New York. No proof has been provided by the plaintiff showing that the defendant maintains an office in Nassau County. As personal delivery of the summons to the defendant was not effecuated within Nassau County, the defendant must be deemed to be a non-resident of Nassau County. UDCA 404(d).

To properly serve the defendant, the plaintiff must comply with the mandates of Uniform

District Court Article 4 – Summons. UDCA §403 states: [*3]

Service of summons shall be made in the manner prescribed in supreme court practice, including optional method of service by mail authorized by CPLR §312-a, but it shall be made only within the county unless service beyond the county be authorized by law in this act or elsewhere.

Page 3

Index No. SP 31747/03

In the case at bar, the plaintiff served the defendant outside Nassau County. To sustain jurisdiction of service outside Nassau County, the criteria of UDCA §404 must be satisfied. UDCA §404 states in part:

(a) Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the county, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the county, if, in person or through an agent; he:

1. transacts any business within the city; or

2. commits a tortious act within the city, except as a cause of action for defamation of character arising from the act; or

3. owns, possesses any real property within the city.

As this suit is based in breach of contract, we are only concerned with whether the cause of action arose in Nassau County due to the defendant’s transaction of business in Nassau County.

Pursuant to UDCA 404(a)(1), the District Court may exercise jurisdiction over a non-resident of Nassau County if a person transacts any business within a district of the court and the cause of action arises from that transaction of business (see also, Coffman v. National Union Fire Insurance Company of Pittsburgh, Pa., 60 Misc 2d 81, 302 NYS2d 480 [Dist Ct, Nassau County, 1969]).

Even if the plaintiff could prove that the defendant transacts business in Nassau County, the second requirement to establish long arm jurisdiction is that the act forming the subject matter of the action must arise from the transaction of business in Nassau County.

In support of its motion, defendant maintains that the acts complained of in plaintiff’s complaint neither occurred in Nassau County nor had any connection with the County of Nassau. The accident took place in Sullivan County, the plaintiff’s assignor lives in Sullivan

County and the health services were provided in Sullivan County. Therefore, the defendant argues that the elements necessary for the Court to exercise personal jurisdiction over a non-resident under UDCA 404(a) are not present.

The defendant has established a prima facie case on its cross-motion to dismiss. The burden [*4]is now on the plaintiff to establish that there is a basis for long arm jurisdiction over the defendant. The Court finds that the plaintiff has not demonstrated that the defendant did transact business within Nassau County and that this cause of action arose from the transaction of that business. The accident occurred outside of Nassau County, the treatment occurred outside of Nassau County, and the assignor resided outside of Nassau County.

Page 4

Index No. SP 31747/03

Furthermore, the Court notes that for reasons that remain unclear, this County has lately been made the “Court” for disputes over no-fault benefits arising between litigants residing in counties outside this jurisdiction. The only connection that matter has with Nassau County is that the office of the plaintiff’s attorney is in Nassau County.

In view of the above, this Court does not have jurisdiction over the person of the defendant. The defendant’s cross-motion dismissing the plaintiff’s complaint is granted and the plaintiff’s motion for summary judgment is denied. The defendant’s cross-motion for summary judgment is also denied.

Dated: __________

ENTER:

__________________________________

Randy Sue Marber, District Court Judge

cc: Dash & Burns, Esqs.

Freiberg & Peck, LLP

District Court of Nassau County, Third District

5010/03

Sondra K. Pardes, J.

Chief Judge Kaye recently noted that the Legislature enacted the Comprehensive “Automobile Insurance Act”… – commonly known as the No-Fault Insurance Law-with the objective of promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts.” (see, Pommells v Perez, NYLJ 4/29/2005, at 18, cols 1-6, at 19 cols 1-3). The instant case, is but one of a myriad of cases that demonstrate the lengths to which parties are willing to go to defeat the objectives of this legislation.

PROCEDURAL HISTORY

This is an action for recovery of No-Fault Insurance benefits for medical treatment provided on September 11, 2002, in the amount of $543.04. The plaintiff commenced this action by service of the summons and complaint on June 19, 2003. Issue was joined on July 18, 2003. The plaintiff served discovery demands dated July 25, 2003 and the defendant responded to those demands on February 26, 2004.

The defendant filed a Notice of Trial and Certificate of Readiness for Trial on [*2]June 4, 2004. The plaintiff filed a motion to strike the defendant’s Notice of Trial on

INDEX NO. 5010/03

June 18, 2004, on the grounds that the Notice of Trial was premature and improper in that in that the defendant failed to adequately and completely respond to the plaintiff’s discovery demands.

The defendant failed to respond to the plaintiff’s motion to strike the Notice of Trial. The motion was submitted without opposition on July 12, 2004. On July 16, 2004 this court, (Marber, J.), directed the parties to appear for a discovery conference on September 30, 2004.

On September 30, 2004 plaintiff’s motion to strike the Notice of Trial, the motion was submitted without opposition once again. On October 27, 2004, this court, (Anzalone, J.), issued an Order directing the parties to appear for a discovery conference to be held on December 9, 2004 to address the issues raised in the plaintiff’s motion. On November 23, 2004 the plaintiff moved for summary judgment. The conference scheduled for December 9, 2004 was adjourned to January 3, 2005, at the request of the plaintiff.

The defendant’s affirmation in opposition to the plaintiff’s summary judgment motion did not address the substantive issues raised in plaintiff’s motion papers. Counsel only asserts that the Notice of Trial was served June 2, 2004 and had not been vacated and therefore, pursuant to CPLR 3212, the plaintiff’s motion for summary judgment should be denied as untimely.

This court directed counsel for both parties to appear for a conference on March 7, 2005. On that date the parties agreed to resubmit the plaintiff’s motion to Strike the Notice of Trial and the plaintiff’s motion for summary judgment to be decided together. The motions are decided as follows.

MOTION TO STRIKE THE NOTICE OF TRIAL

The Plaintiff’s motion to strike the defendant’s Notice of Trial was repeatedly submitted without opposition from the defendant. Accordingly the motion is granted.

MOTION FOR SUMMARY JUDGMENT

In order to make a prima facie showing of entitlement to summary judgment in a No-Fault Insurance action, a medical provider must submit evidentiary proof that it submitted the appropriate claim forms and that the forms were received by the insurer. (see, Damadian MRI in Elmhurst v Liberty Mutual, 3 Misc 3d 128 [A], [App Term 9th and 10th Jud Dist, 2003]). Once a prima facie showing has been made, the burden shifts to [*3]the opposing party to produce evidentiary proof to establish the existence of material issues of fact. (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]).

INDEX NO. 5010/03

In the instant case it is uncontroverted that the plaintiff submitted claims for medical treatment to the defendant and the claims were received in November of 2002. Partial payment was made and the balance denied on each claim within the time prescribed by statute. (see, 11 NYCRR 65-3.5[a]). In each case the defendant indicated on the Denial of Claim form, “code changed to reflect level -of service” and paid a lower fee associated with the new code. The plaintiff asserts that the denials were issued “without a sufficiently detailed factual basis and medical rationale” for the claims’ rejection, i.e. without any explanation for the determination to change the CPT codes. The plaintiff argues that these denials are ineffectual under the rationale articulated in Amaze Medical Supply Inc. v Eagle Insurance Co., 3 Misc 3d 128 [A]; (App Term, 2nd and 11th Jud Dist, 2003).

In opposition to the motion for summary judgment counsel for the defendant states that this motion should be denied because it was submitted more than 120 days after the service of the Notice of Trial and “the Notice of Trial has not been vacated”. The defendant did not respond to the substance of the plaintiff’s motion for summary judgment. The defendant’s affirmation in opposition was dated December 8, 2004. On that date the defendant was clearly aware that a motion to strike the Notice of Trial had been submitted on June 18, 2004, 16 days after the Notice of Trial was served. The defendant was also aware that motion had been adjourned repeatedly, apparently with consent of both counsel, and no decision had yet been rendered when the motion for summary judgment was filed. Moreover, at a conference held on March 7, 2005, the court pointed out the defendant’s failure to oppose the motion to strike the Notice of Trial and its failure to offer any substantive opposition to the motion for summary judgment. Nevertheless, the defendant agreed that both motions be submitted on that date.

Inasmuch as the court has granted the plaintiff’s motion to strike the Notice of Trial, the court finds that the plaintiff’s motion for summary judgment is not untimely pursuant to CPLR 3212. In addition the court concurs with the plaintiff that the defendant’s determination to change the CPT codes with respect to the claims in question and to pay reduced fees not supported by a peer review or any other proof “setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection” are ineffectual (see, Amaze Medical Supply, supra 2003 WL 23310886, 1) . Finally, the defendant has failed to come forth with any evidentiary proof of a triable issue of fact requiring trial. [*4]

INDEX NO. 5010/03

Accordingly, the plaintiff’s motion for summary judgment is granted.

Let judgment enter in favor of the plaintiff and against th defendant in the sum of $543.04, plus interest at the rate of 2% per month from June 19, 2003, plus attorney fees of 20% thereof, (attorney fees not to exceed $850.00), plus costs and disbursements of this action.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: May 9, 2005

CC:Israel, Israel & Purdy, LLP

Serpe, Andre & Kaufman

SKP:rad

District Court of Nassau County, First District

14267/04 325d

Vito M. DeStefano, J.

This no-fault action arises out of an accident that occurred on December 6, 2002. The plaintiff provided medical treatment to Keith Elman and thereafter submitted Forms N-F5 and UB-92 to the defendant in the amount of $5,567.67. The defendant did not pay or deny the claim within 30 days of receipt. The plaintiff now moves for summary judgment. The defendant opposes, arguing, inter alia, that: plaintiff’s claim is premature because requests for additional verification were made and not responded to; plaintiff’s claim is improper because it failed to obtain a properly executed assignment of benefits; plaintiff has failed to submit proof of medical necessity.

The plaintiff’s motion is granted for the following reasons:

A medical provider makes a prima facie showing of entitlement to summary judgment by submitting evidentiary proof that the necessary billing forms were mailed and received, and that payment of no-fault benefits was overdue (11 NYCRR 65.15 [g]; Insurance Law 5106[a]; New York Hospital Medical Center of Queens v Motor Vehicle Accident Indemnification Corp., 12 AD3d 429 [2d Dept 2004]; Mary Immaculate Hospital v Allstate Insurance Company, 5 AD3d 742 [2d Dept 2004]; A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. v Prudential [*2]Property & Casualty Insurance Co., 2005 NY Slip Op 25032 [App. Term. 1st Dept 2005]). Once the plaintiff meets its burden, the burden shifts to the defendant to show the existence of a triable issue of fact.

Here, plaintiff’s motion papers and supporting exhibits establish that no-fault forms were received by the defendant on January 13, 2003 and that defendant never paid or denied the claim. Indeed, defendant confirms these facts in its opposition papers. Accordingly, plaintiff has satisfied its prima facie burden. Defendant, in contrast, has failed to meet its burden by raising any issues of fact.

In this regard, defendant’s argument that the plaintiff’s claim is premature is without merit. It is true that “[a] claim need not be paid or denied until all demanded verification is provided” (New York Hospital Medical Center of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2d Dept 2002] citing 11 NYCRR 65.15 [g][1][I]), however, it is incumbent upon the defendant insurer to demonstrate with sufficient proof that a timely request for verification was actually made.

In Contemp. Med. Diag. & Treatment, P.C. v Government Employees Insurance Co. (2005 NY Slip Op 50254U), decided March 2, 2005, the Appellate Term, Second Department, rejected the insurer’s assertions as to what constituted adequate proof of mailing of a request for verification:

[T]he assertion of defendant’s no-fault claims examiner that it was “the usual and customary course of business at GEICO that all documents are mailed on the same day they are generated” was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with. Since defendant’s opposition papers did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish by competent evidence that it timely mailed its verification requests, and the 30-day period within which it was required to pay or deny the claim was therefore not tolled (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U], supra).

At bar, the affidavit of litigation representative Jeffrey Stangle submitted in opposition to the motion is wholly inadequate to establish an issue of fact as to whether timely request for additional verification was made, or, in fact, if any request for verification was made at all (see, also, Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2d Dept 2001]). [*3]Notably, Mr. Stangle’s affidavit states only that “my office mailed a request for additional verification,” without indicating any personal knowledge of the mailing. The affidavit does not provide any details concerning when or how the request was allegedly made; nor does it describe any standard office practices to ensure that the requests were properly mailed. Therefore, the plaintiff’s claim is not premature.

The court also rejects defendant’s argument that the plaintiff’s claim is improper due to a defective assignment of benefits. The assignment is not signed by Mr. Keith Elman, but instead contains the notation “signature on file”. Moreover, omitted from the assignment is certain revocation language required by 11 NYCRR 65-3.11(b)(i). Significantly, however, defendant waived any defects in the assignment by failing to timely object to them (e.g., New York Hospital Medical Center of Queens v. New York Central Mutual Fire Ins. Co., 8 AD3d 640 [2d Dept 2004] [Defendant’s “objection to the claim or the basis of lack of proof of assignments were without merit” because it failed to establish that it requested verification of such assignments]; see, also New York Hospital Medical Center of Queens v. Motor Vehicle Accident Indem. Corp., 12 AD3d 429 [2d Dept 2004] [Defendant’s failure to object to the adequacy of plaintiff’s claim form within 10 days of receipt constituted a waiver of any defenses based thereon]; New York Hospital Medical Center of Queens v AIU Insurance Co., 8 AD3d 456 [2d Dept 2004]; Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11 [2d Dept 1999]; Presbyterian Hosp. in the City of New York v. Aetna Cas. & Sur. Co., 233 AD2d 433 [2d Dept 1996]; St. Clare’s Hosp. v. Allcity Ins. Co., 201 AD2d 718 [2d Dept 1994]; AB Medical Services, PLLC v. Prudential Property & Casualty Ins. Co., 2005 NY Slip Op 25032 [NY App Term, Jan. 20, 2005]).

The defendant’s opposition papers fail to discuss, or even acknowledge, the controlling appellate authority on the issue of waiver. Instead, in support of its argument that plaintiff’s motion should be denied because of a defective assignment, defendant cites an opinion of the Office of the General Counsel to the Superintendent of Insurance (State of New York Insurance Department, Opinion dated February 18, 2003 [Assignment used by provider must contain prescribed statutory language]) and case law recognizing the Superintendent’s broad power to interpret, clarify and implement legislative policy (Ostrer v Schenck, 41 NY2d 782 [1977]).

The Court notes that there is no conflict between such authority and those cases which hold that defects in plaintiffs’ claim forms, including the assignment, are waived if not timely objected to. Moreover, if a conflict did exist, this court would be bound to follow appellate authority that is directly on point.

As to defendant’s argument regarding the failure of proof of medical necessity, again, defendant waived any such contention by failing to raise it in a timely denial (see, Bonetti v Integon National Ins. Co., 269 AD2d 413 [2d Dept 1999]; Mount Sinai Hosp. v. Triboro Coach, supra; Amaze Medical Supply Inc. v. Eagle Ins. Co., 2 Misc 3d 128A [NY App Term 2003]).

The defendant’s remaining contentions are also without merit. [*4]

Plaintiff is awarded judgment against the defendant in the amount of $5,567.67, plus statutory interest at 2% per month from February 13, 2003, and attorneys’ fees of 20%, not to exceed $850. In addition, plaintiff is awarded $50.00 costs on this motion.

So ordered:

DISTRICT COURT JUDGE

Dated:March 22, 2005

CC:Joseph Henig, P.C.

Freiberg & Peck, LLP

VMD/mp

District Court of Nassau County, Third District

1587/04

Alden Banniettis, Esq., attorney for plaintiff; Samuel K. Rubin, attorney for defendant.

Randy Sue Marber, J.

Plaintiff assignee moves for an order pursuant to CPLR 3212, awarding summary judgment in its favor. The defendant opposes the plaintiff’s motion.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [NY 1986]; Winegard v. New York University Medical Center, 64 NY2d 851 [NY 1985]) and even in the absence of opposing papers. A motion for summary judgment shall be supported by an “affidavit by a person having personal knowledge of the facts”, shall recite all the material facts and it shall show that there is no defense to the cause of action or that the defenses have no merit (CPLR 3212[b]). If the moving party meets his burden, the burden then shifts to the non-moving party to allege such evidentiary facts that raise a genuine and material controversy as to the issue(s) before the Court. Where the opposing party fails to meet his burden and the Court finds no triable issues, the motion will be granted (Iandoli v. Lange, 35 AD2d 793 [NYAD 1st Dept 1970]). Where the Court determines that a triable issue of fact exists, denial of the motion is the proper course of action (Moskowitz v. Garlock, 23 AD2d 943 [NYAD3d Dept 1965]). [*2]

“A plaintiff establishes a prima facie case … by showing … that insurance coverage existed; that a facially valid claim was presented; and that the claim was not timely denied” (Vinings Spinal Diagnostic, P.C. v. Liberty Mut. Ins. Co., 186 Misc 2d 287, 291 [NY Dist Ct Nassau 2000]). Plaintiff’s proof upon its instant motion consists of an affirmation of counsel and an unverified complaint (both having no probative value as to the relevant facts the Court is searching). It is also supported by a short affidavit of “Ernest Horowitz MD”, who asserts that he is an officer of the plaintiff/assignee. In his affidavit, he declares that the “assertions in his counsel’s affirmation are true and correct”. He states that his knowledge of the facts comes from his “business records, maintained as a matter of practice, by [him], in [his] practice”. The Court does not accept the attempted incorporation by reference by affiant Horowitz (whose burden it is to prove relevant facts upon personal knowledge) of factual allegations contained in plaintiff’s counsel’s affirmation where counsel’s allegations are based upon counsel’s “interview of (unnamed) corporate affiants and defendant’s business records … “. Horowitz’s affidavit does not show upon first-hand knowledge the dates each of the plaintiff’s six purported claim forms were sent to or received by defendant. Although plaintiff’s application contains proofs of six mailings of something, Dr. Horowitz’s affidavit does not prove what was mailed and that same were mailed by him. Dr. Horowitz does not state that no payments have been made by the Defendant within thirty days of the submission of those bills … nor does he show that the defendant did not properly seek additional verification. The Court notes that the plaintiff has not demonstrated the untimeliness of the defendant’s denial. Although the affiant indicates that his file contains certain documents, the affirmation fails to make specific reference to any pertinent exhibits which it may have derived from his file. Dr. Horowitz appears to be a complete “stranger” to the treatment and claim submission in this matter.

Although not pertinent to the Court’s above determination, the Court notes that the lateness of a denial or the absence of a required denial does not prohibit the insurer from raising the defense of lack of coverage based upon the fact or founded belief that the alleged injury did not arise out of an insured incident; in this case an alleged fraud on the part of the assignor (Metro Medical Diagnostics, PC v. Eagle Insurance Co., 293 AD2d 751 [NYAD 2d Dept 751, 2002]; Valley Psychological PC v. Liberty Mutual Insurance Co., 195 Misc 2d 540 [City Ct, Albany 2002]). “The Court of Appeals did not intend the issue of fraud to escape the notice of the court simply because of a late denial” (Valley Psychological PC v. Liberty Mutual Insurance Co., supra at 542). Although there is no application presently before the Court to amend the answer, the unpled defense of fraud is available to a defendant in resisting plaintiff’s summary judgment motion (Rizzi v. Sussman, 9 AD2d 961 [NYAD 2d Dept 1959]).

In addition, the No-Fault Verification of Treatment furnished by plaintiff’s counsel to the Court differs from what was apparently sent to the defendant upon submission of the claim. Furthermore, any deficiencies in the moving papers cannot be remedied on reply as attempted herein. [*3]

Plaintiff’s instant motion seeking summary judgment in its favor is, in all respects, denied. Defendant is awarded costs on this motion.

Dated: ____________

ENTER:

____________________________________

Randy Sue Marber, District Court Judge

cc: Alden Banniettis, Esq.

Samuel K. Rubin, Esq.

District Court of Nassau County, First District

12979/04

Scott Fairgrieve, J.

Plaintiff moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor in this action to recover fees for medical treatment provided under the no-fault law to its assignor, Rachael Charriah. The defendant opposes this motion and the plaintiff has served a reply.

Plaintiff’s assignor was involved in a motor vehicle accident on January 5, 2004. Plaintiff submitted a claim to defendant in the sum of $879.73, no part of which has been paid. The defendant admits receipt of the claim on March 4, 2004 and denial of the entire claim was made on March 22, 2004.

The motion papers have established that the plaintiff submitted its proof of claim and that the defendant issued its denial within thirty days of receipt of the claim. The denial was based upon a lack of medical necessity.

Plaintiff posits that the denial was defective since it was based on the opinion of a nurse. [*2]Therefore, the defendant has not met its burden of proof of demonstrating that the services rendered, an MRI, lacked medical necessity as a nurse is a layman and her testimony may not be used to establish the standard of care in the medical field.

It is the defendant’s position that the file-based review methodology is an entrenched procedure used in many professions to determine the necessity and quality of the services performed. Further, the defendant asserts it would be unreasonable to require the denial of coverage to be based on the ground of medical necessity to be made in the first instance by a peer review doctor exclusively.

As stated in Choicenet Chiropractic v. Allstate Insurance Co., 2003 NY Slip Op 50672U:

“The defense of lack of medical necessity may be asserted on the basis either of peer review or a medical examination as implicitly provided by Insurance Regulation 11 NYCRR 65-3.8(b)(4).”

The Court held in Abraham v. Country-Wide Insurance Company, 3 Misc. 3d 130 (App Term, 2d and 11th Jud Dists 2004):

“As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v. Moore, 299 A.D.2d 949, 951, 752 N.Y.S.2d 183 [2002] whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v. Proper, 270 A.D.2d 816, 817, 705 N.Y.S.2d 144 [2000], aff’d 95 N.Y.2d 597, 744 N.E.2d 128, 721 N.Y.S.2d 593 [2001]; People v. Russell, 165 A.D.2d 327, 332, 567 N.Y.S.2d 548 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]).”

Since the defendant has failed to prove lack of medical necessity through a medical examination or peer review, its denial is ineffective. Therefore, the defendant is precluded from offering a defense of lack of medical necessity despite the timeliness of the denial Amaze Medical Supply, Inc. v. Eagle Insurance Co., 2 Misc. 3d 128A (App Term, 2nd and 11th Jud Dists 2003).

Upon a review of the papers submitted, the Court concludes that the plaintiff has satisfied its burden of demonstrating entitlement to summary judgment. The defendant has failed to come forward with proof to establish the existence of triable issues of fact. Summary judgment, therefore, is granted in favor of the plaintiff.

Let judgment be entered in favor of the plaintiff in the sum of $879.73, plus statutory interest from April 4, 2004, together with statutory attorney’s fees along with costs and disbursements. Attorney’s fees not to exceed $850.00. The other issues raised by the defendant need not be addressed. [*3]

So ordered:

DISTRICT COURT JUDGE

Dated: August 26, 2004

CC:Friedman, Harfenist, Langer & Kraut

Jaffe & Nohavicka

SF/mp

[*1]

District Court of Nassau County, First District, August 23, 2004

APPEARANCES OF COUNSEL

Lawrence N. Rogak, LLC, Oceanside, for defendant. Dash & Burns, Jericho, for plaintiff.

{**5 Misc 3d at 838} OPINION OF THE COURT

Joel K. Asarch, J.

{**5 Misc 3d at 839}The defendant, Lumbermans Mutual Insurance Company, moves pursuant to CPLR 3103 (a) for a protective order denying the plaintiff disclosure of the contents of the defendant’s entire no-fault file with respect to its assignor. The defendant contends that it has provided the plaintiff with NF-10s, payment letters and bills, “both the bills at issue in this lawsuit, and for those services defendant believes to represent overlapping and concurrent care, which was the basis for denial” (affirmation of Steven D. Rhodes, Esq., dated Oct. 31, 2003 [emphasis supplied]). The defendant objects to the plaintiff being able to review the entire contents of its no-fault claims file. The plaintiff, on the other hand, relying in part on prior decisions issued by this court, contends that a review of the entire no-fault file will aid in the prosecution of the action and will permit it to discover those documents that led to the denial of the claim.

In this no-fault action, the plaintiff (a health service provider) seeks a judgment for health services allegedly rendered to Elaine McKeithan (the assignor) as a result of an automobile accident occurring on July 14, 2000. The defendant provided no-fault insurance benefits to Ms. McKeithan at the time of the accident under a policy of insurance. The plaintiff is seeking recovery of no-fault benefits from the defendant insurer in the sum of $2,950.36, together with statutory interest and attorney’s fees, due to medical services provided to the plaintiff’s assignor.

This action was commenced on or about March 14, 2002 by service of a summons and complaint upon the defendant. The defendant answered the complaint on or about April 23, 2002, denying the central allegations in the complaint and raising several affirmative defenses. The court notes that the basis for the denial of claim was that the “fees [were] not in accordance with fee schedules” and that “concurrent care involves overlapping/excessive and/or common services.”

This court stated in Ostia Med., P.C. v Government Empls. Ins. Co. (1 Misc 3d 907[A], 2003 NY Slip Op 51560[U] [Nassau County Dist Ct 2003]):

“A protective order is designed to guard against disclosure abuses. CPLR 3103(a) states, in relevant part, that:

” ‘ . . . The Court may at any time on its own initiative, or on motion of any party or of any person from [*2]whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed {**5 Misc 3d at 840}to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.’

“Thus, pursuant to the CPLR and UDCA, a protective order may be used, no matter what disclosure device is implicated . . .

“The Court can regulate discovery, pursuant to a protective order, by directing the time, order, place and questions to be asked in an EBT, or dictating the disclosure devices to be used or combination thereof, and even by defraying the costs of a party’s participation in the disclosure (see, Church [&] Dwight Co. Inc. v [UDDO] & Associates, Inc., 159 A.D.2d 275, 552 N.Y.S.2d 277 [1st Dept 1990]; Weeks Office Products, Inc. v Chemical Bank, 178 A.D.2d 113, 577 N.Y.S.2d 10 [1st Dept 1991]).

“Moreover, the Court has broad discretion in limiting or regulating the use of disclosure devices (see, Brignola v Pe[i]-Fei Lee, M.D.[,] P.C., 192 A.D.2d 1008, 597 N.Y.S.2d 250 [3d Dept 1993]).”

The arguments raised by the defendant concerning the purported immateriality and irrelevancy of the materials contained in the defendant’s no-fault file have been addressed by this court in CPT Med. Servs., P.C. v Allstate Ins. Co. (NYLJ, July 1, 2003, at 20, col 3). For the reasons stated in that decision, the court rejects this argument of the defendant and need not repeat itself here. (See also Hudson Med. v Allstate Ins. Co., 183 Misc 2d 749 [App Term, 2d Dept 1999].)

However, the defendant has now raised a further argument concerning the release of the entire no-fault file—that to do so would violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 USC § 1320d; 45 CFR parts 160, 164).

“The modern-day legislative trend is to protect a medical patient’s privacy. Under HIPAA, ‘protected health information’ is broadly defined as any individually-identifiable health information which was created by, among others, a health care provider, and which relates to, inter alia, the past, present, or future physical or mental health or condition of an individual. HIPAA and its supporting regulations, inter alia, established standards and procedures for the collection and disclosure of protected health information to prevent its wrongful disclosure” (Gunn v {**5 Misc 3d at 841}Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 437 [2d Dept 2004] [citations omitted]).

“HIPAA provides that a party deemed to be a ‘covered entity’ may not use or disclose protected health information except for in treatment, or for payment or health care operations of the individual patient, or to the individual patient, without receiving a proper authorization. A ‘covered entity’ is defined as (1) a health plan, (2) a health care clearinghouse, or (3) a health care provider who transmits any health information in electronic form, as prescribed by the regulation” (Lewis v Clement, 1 Misc 3d 464, 466 [Sup Ct, Monroe County 2003]).

“Except as otherwise provided herein, the standards, requirements, and implementation specifications of this subpart apply to covered entities with respect to protected health information” (45 CFR 164.500 [a]).

The plaintiff argues that the defendant is not a “covered entity” under HIPAA in that automobile medical payment insurance is an excepted benefit (see 42 USC § 300gg-91 [c] [1] [E]), and hence not subject to the requirements of HIPAA. This court respectfully disagrees. The defendant is a “health plan” as defined under 45 CFR 160.103 in that it is “an individual or group plan that provides, or pays the cost of, medical care,” which is defined elsewhere as amounts paid for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or amounts paid for the purpose of affecting any structure or function of the body” (42 USC § 300gg-91 [a] [2] [A]). The New York State Insurance Department, in an opinion letter dated July 8, 2003, indicated that “[a]n insurer that offers health insurance, in addition to either Workers’ Compensation or No-Fault insurance, would, unless [*3]it opts to be a hybrid entity, 45 C.F.R. § 164.103 (2003), be a covered entity.” Thus, the court finds Lumbermans Mutual Insurance Company, a member of the Kemper Insurance Companies and Unitrin, Inc., to be a covered entity. As a result, the release of protected health information must be limited “to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request” (45 CFR 164.502 [b] [1]). While the provider may (and, in fact, must if it wants payment under no-fault) transmit protected health information (see, e.g. 11 NYCRR 65.12), the defendant is more restricted with its disclosure under HIPAA. The form NF-2 does not permit a blanket release of medical information, either to the plaintiff or otherwise.{**5 Misc 3d at 842}

It is apparent to this court that there are two competing principles at work here. On the one hand, a claimant has the right under HIPAA to avoid unnecessary disclosure of his or her protected medical information and condition. To permit the release of medical information on conditions completely unrelated to the no-fault treatment by a provider without the express authorization of the claimant would fly directly in the face of HIPAA. On the other hand, to permit the defendant to be the gatekeeper of all medical information and to permit its release only after further proceedings before an already taxed court would run afoul of the full disclosure premises of CPLR article 31. This is not a situation where a health care provider is receiving protected health information in order to treat the claimant. Rather, the information is being sought to be used by the plaintiff’s attorneys in order to secure payment.

Thus, it is the holding of this court that if the plaintiff presents a valid authorization complying with the HIPAA regulations, to wit, 45 CFR 164.508 (a) (1), the plaintiff is entitled to review the defendant’s no-fault claims file, subject to privileged and protected material as specified in the Ostia and CPT decisions (supra). It is clear to this court that a claimant must be made aware that his or her medical information will be revealed to the plaintiff—something a claimant may or may not want. The core elements of a valid authorization contain the information to be disclosed, the name of the recipient, a description of “each purpose of the requested use or disclosure” and an expiration date, together with statements concerning the signer’s right to revoke the authorization et al. (45 CFR 164.508 [c].) The mere submission of an NF-2 is insufficient to comply with HIPAA. (See 45 CFR 164.508 [a] [1].) The privacy rights of the patient need to be preserved under HIPAA.

However, as the claimant is seeking third-party payment for services rendered, a more limited assignment signed by the claimant will permit the medical provider to obtain from the defendant those items directly bearing on the services rendered and any denial issued. It is clear that by seeking payment of the medical costs, the claimant has placed her condition in controversy with respect to those services rendered by the provider and for which payment is sought (CPLR 3121 [a]). The plaintiff has attached to its complaint an opinion letter by the New York Insurance Department, dated May 11, 1998. The letter reads, in relevant part,

“based on the foregoing definition, as long as the two {**5 Misc 3d at 843}providers are performing two different and distinct treatments it should not be classified as concurrent care. If the insurer and medical provider disagree on what should be classified as concurrent care, and a denial is then issued, the dispute may be brought before an arbitrator or court of competent jurisdiction for final resolution.” (See also Universal Acupuncture Pain Servs. v Lumbermens Mut. Cas. Co., 195 Misc 2d 352 [Civ Ct, Queens County 2003].)

Thus, in the present case, the motion of the defendant is granted in part. As the assignment does not constitute a valid authorization under HIPAA,^[FN*] the plaintiff is entitled to disclosure of all [*4]documents and materials specifically concerning the alleged concurrent treatment only. This case does not involve medical necessity of treatment—rather, concurrent care. The plaintiff is entitled to those documents in this case which concern the issue of concurrent care, whether relied upon by other providers or in peer reviews. Within 30 days of the date of this order, the defendant shall provide the plaintiff, if not already provided, with copies of all documents, independent medical examinations, bills et al. which concern treatment to the claimant’s right shoulder, lower back, cervical or lumbar spine or neck. Such therapies shall include massage, ultrasound, mechanical traction, electric stimulation, hot and cold packs and therapeutic exercises and activities performed by any provider. If the defendant fails to turn over any such documents or materials, it shall be precluded from offering such materials and items at trial, whether through direct use or through the testimony {**5 Misc 3d at 844}of an expert witness who has reviewed such documents in the formulation of his or her opinion.

Based on the foregoing, this court declines in this case to permit the disclosure of protected health information of the entire no-fault file. (See 45 CFR 164.512 [e].)

Footnotes

Footnote *: The assignment reads, in relevant part, that “I hereby instruct and direct the ___ Insurance Company to pay by check made out to . . . mailed directly to . . . or if my current policy prohibits direct payment to doctor, then I hereby also instruct and direct you to make out the check to me and mail it as follows . . . For professional or medical expense benefits allowable and otherwise payable to me under my current insurance policy as payment toward the total charges for professional services rendered.this is a direct assignment of my rights and benefits under the policy . . . I also authorize the release of any information pertinent to my case to any insurance company, adjuster, or attorney involved in this claim.” Further, the application for no-fault benefits provides that “This authorization or photocopy hereof will authorize you to furnish all information you may have regarding my condition while under your observation or treatment, including the history obtained, X-ray and physical findings, diagnosis and prognosis. You are authorized to provide this information in accordance with the new york comprehensive automobile reparations act (no-fault law).” Neither statement complies with 45 CFR 164.508 (c).

District Court Of Nassau County, Third District,

INDEX NO. 003594/03

Steven M. Jaeger, J.

Plaintiff’s motion for summary judgment and defendant’s cross-motion to compel discovery are decided as follows:

The plaintiff, a health care provider and assignee of no-fault benefits, commenced this action against the defendant, the insurer of the assignor, to recover the first party No Fault Law benefits. In this case, the patient/assignor was injured in a motor vehicle accident on July 19, 2002. Plaintiff submitted the claim on the appropriate forms to defendant on September 9, 2002. Defendant’s denial was dated December 2, 2002.

The defendant’s failure to deny the plaintiff’s claim for no-fault benefits within thirty (30) days of receipt of the proof of claim, and the amount of loss sustained as required by Insurance Law 5106, and 11 NYCRR 65.15[g][3], precludes the defendant from asserting an affirmative defense of denial of benefits on various grounds. Presbyterian Hosp. v. Maryland Cas. Co., 90 NY2d 274 [1997]. Defendant’s late denial form designates assignor’s (Abbott) failure to appear for independent medical examinations on October 25, 2002 and November 8, 2002 as the basis for the claim denial. The first IME was not scheduled until more than 30 days after the claim was received.

In response to this application and in support of defendant’s cross-motion for summary judgment, defendant contends that the insured owner/operator of the car may have possibly staged this as a fraudulent accident with assignor Abbott as a passenger. Defendant further contends that assignor Abbott’s failure to appear for two scheduled independent medical examinations (as stated on defendant’s denial form) was based on indicia of fraud and was for “Examination under Oath”. The latter examination was not requested until December 10, 2002 and the denial forms provided by each party differs as to riders attached.

Defendant’s position appears to be that, (1) the claim denial, despite its express language, is in fact based on fraud and, (2) a claim arising from an insurance fraud scheme is not a covered accident and therefore, the late denial of same would not necessarily be fatal to defendant’s defense. Metro Med. Diagnostics, P.C. v. Eagle Ins. Co., 293 AD2d 751 (2d Dept 2002). Defendant’s fraud claim or defense is only substantiated by the unsworn reports of investigators that examined the subrogor’s signatures on forms ostensibly signed after each treatment. The [*2]conclusion is that the treatment forms were signed all at once or in groups. No evidentiary proof was provided, however, in opposition to the motion for summary judgment. The Court also notes that the denial of claim form (NF-10) provided by defendant (and dated March 10, 2003) differs from the one provided by plaintiff (dated December 2, 2002) in that each contains materially different riders. No explanation for this is offered by the defendant. Nor does the defendant explain how alleged fraud in providing medical services constitutes a “non-covered” accident under the applicable no-fault statutes and regulations.

In this case, the defendant notified the plaintiff on or about December 2, 2002 that it was denying benefits based upon a failure to attend IMEs. Pursuant to State Farm v Domotor, 266 AD 2d 219 (2d Dept 1999), the Court finds that this denial excused the plaintiff from further compliance with any further requests or demands from the defendant. “An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of its policy. Rather, the insurance carrier ‘must stand or fall upon the defense upon which it based its refusals to pay’.” 266 AD 2d at 220.

Accordingly, the plaintiff has met their burden in demonstrating a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320. Notwithstanding defendant’s late investigations, defendant has not shown the existence of evidentiary facts sufficient to toll the statutory limits for denials of claims. An insurer is required to either pay or deny a claim for medical services rendered under No-Fault within 30 days from receipt of proof of the claim (e.g., the bill), which proof shall include verification (IME) requested by the insurer pursuant to 11 NYCRR §65-3.5, Insurance Law §5106(a); 11 NYCRR §65-3.8(a). This 30 day period may be extended by an insurer’s timely request for further verification of the claim. New York Presbyterian Hospital v. American Transit Insurance Company, 287 AD2d 699, (2d Dept 2001). There is no documentation of timely requests by defendant.

Plaintiff’s motion for summary judgment is granted in the amount of $1,758.40, plus interest at 2% per month from October 9, 2002, together with attorneys’ fees of 20% thereof, not to exceed $850.00. 11 NYCRR §65(17)((b).

Defendant’s cross-motion for an order of preclusion regarding discovery is denied as moot in view of the aforementioned decision.

So Ordered:

Dated: March 29, 2004 District Court Judge

Decision Date: March 29, 2004

District Court Of Nassau County, First District,

INDEX NO. 32065/02

Joel K. Asarch, J.

The following named papers numbered 1 to 4 were submitted on this Notice of Motion on July 18, November 5, November 20 and November 24, 2003:

Notice of Motion and Affidavits Annexed 1-2

Order to Show Cause and Affidavits Annexed

Answering Affidavits 3

Reply Affidavits 4

Factual Background

The forty-eight (48) cases listed in the above caption have been joined for the purposes of the instant motion only. The plaintiffs (hereinafter “plaintiff” or “medical provider”) are all medical providers, being represented by the same law firm, and the defendant in all forty-eight (48) cases is Government Employees Insurance Company (hereinafter “GEICO” or “insurance carrier”) . In all of the actions, the plaintiff is seeking recovery of no-fault benefits from GEICO, due to medical services provided to the plaintiff’s assignors, for injuries allegedly resulting from various motor vehicle accidents.

The plaintiff moves, pursuant to CPLR 3103(a), for a protective order vacating GEICO’s notice to compel the examination before trial (hereinafter “EBT”) of the medical provider. The plaintiff claims that as a matter of law, the defendant is not entitled to an EBT of the plaintiff. In the alternative, the plaintiff requests that if the Court should deny the plaintiff’s motion for a protective order, then the Court order supervised discovery, pursuant to CPLR 3104. GEICO opposes the plaintiff’s motion and cross-moves for an order granting costs and sanctions.

The legislature’s intent in enacting the no-fault law was to ensure that every automobile [*7]accident victim be compensated for substantially all of his or her basic economic loss (i.e., first party benefits ^[FN12]) promptly, without regard to fault and to significantly reduce the number of automobile personal injury cases litigated in the courts (see, Johnson v. Hartford Ins. Co., 100 Misc.2d 367, 418 N.Y.S.2d 1009 [Sup Ct Monroe County 1979]; Licari v. Elliot, 52 N.Y.2d 230 [1982]; Zlatnick v. GEICO, N.Y.L.J. 12/8/03, p. 21, col.1, 2003 WL 22849608, 2003 NY Slip Op. 23870 [Civil Court, Queens County], citing Medical Society of State of New York v. Serio, 100 N.Y.2d 853 (2003). Contrary to the legislature’s intent, however, in a large number of cases, prompt compensation is not occurring. Rather, medical providers, who have been assigned the injured victim’s right to first party benefits are resorting to litigation in New York courtrooms for recovery of first party benefits. In recent years, the Nassau County District Court, as well as many courts of limited jurisdiction in New York State, have become swamped with no-fault litigation for the recovery of first party benefits. Due to the recent influx of no-fault litigation, this Court has had to tackle numerous first impression, no-fault substantive and procedural issues. In fact, this Court has set up no-fault discovery conference calendars, to help ease the burden on the Court and to try to promote the intent of the legislature (i.e., prompt payment and/or resolution of no-fault claims).

The Court finds the legal issues presented in the parties’ respective motion papers to be as follows:

(1)Is an insurance carrier entitled to an EBT of a medical provider under the CPLR and the UDCA?

(2)Is an insurance carrier entitled to an EBT of a medical provider, as well as answers to [*8]interrogatories in a No-Fault Action?

(3)Is an insurance carrier entitled to an EBT of a medical provider, under the No-Fault Regulations, if it failed to request an oral Examination Under Oath under the New York Compilation of Codes, Rules and Regulations?

(4)Is the insurance carrier estopped from requesting an EBT of a medical provider because the insurance carrier failed to seek additional verification, under the New York Compilation of Codes, Rules and Regulations?

(5)Does the burden of proving “Medical Necessity” effect the insurance carrier’s right to an EBT of a medical provider?

(6)Do “Special Circumstances” exist, thereby permitting the plaintiff to produce a medical consultant, rather than the medical provider for the EBT?

(7) Is Court-supervised discovery necessary?

(8) Is the insurance carrier entitled to sanctions and costs?

II. LEGAL ISSUES AND ANALYSIS

A protective order is designed to guard against disclosure abuses. CPLR 3103(a) states, in relevant part, that:

” … The Court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”

Thus, pursuant to the CPLR and UDCA, a protective order may be used, no matter what disclosure device is implicated. In the instant case, the disclosure device at issue is an EBT of a medical provider in a no-fault case. In addition, by its own terms, the statute allows a protective order to be moved for “at any time” (CPLR 3103[a]). When deciding whether to grant a protective order, the Court must balance the importance of the information sought against the degree of prejudice the disclosure device would impose (see, Cynthia B. v. New Rochelle Hospital Medical Center, 60 N.Y.2d 452 [1983]).

The Court can regulate discovery, pursuant to a protective order, by directing the time, order, place and questions to be asked in an EBT, or dictating the disclosure devices to be used or combination thereof, and even by defraying the costs of a party’s participation in the disclosure (see, [*9]Church E. Dwight Co. Inc. v. Uddo & Associates, Inc., 159 A.D.2d 275, 552 N.Y.S.2d 277 [1st Dept 1990]; Weeks Office Products, Inc. v. Chemical Bank, 178 A.D.2d 113, 577 N.Y.S.2d 10 [1st Dept 1991]).

Moreover, the Court has broad discretion in limiting or regulating the use of disclosure devices (see, Brignola v. Pe-Fei Lee, M.D. P.C., 192 A.D.2d 1008, 597 N.Y.S.2d 250 [3d Dept 1993]).

(1)Although Pursuant to the CPLR and UDCA an Insurance Carrier is Entitled to an EBT of a Medical Provider in No-Fault Cases, a Condition Precedent to Such EBT in Cases Involving the Issue of “Medical Necessity” is a Showing by the Insurance Carrier that it Issued a Timely Denial of the No-Fault Claim Based on the Ground of “Medical Necessity”.

The plaintiff claims that the defendant insurance carrier is not entitled to an EBT of the medical provider under the CPLR and the UDCA. The plaintiff’s counsel asserts that the defense counsel’s demand for an EBT of the medical provider is in violation of CPLR 3101(a) because the two prong test set forth in CPLR 3101(a) cannot be met. The plaintiff’s position is that an EBT of the medical provider is not material and necessary to the defense of no-fault actions. The plaintiff feels that the defendant is not seeking discovery, but rather the defendant’s true motive is simply to harass and overburden medical providers with useless and duplicative depositions and to interfere with a medical provider’s ability to run a medical practice. The plaintiff’s counsel supports its position by claiming that in every action commenced by the plaintiff’s law firm against the defendant, the defendant has routinely served a demand for an EBT, regardless of the type of claim, or the amount of the claim. In further support of its argument, plaintiff’s counsel states that the relatively simple issues existing in an action for no-fault benefits do not warrant an extensive and overly burdensome EBT of a medical provider. The plaintiff’s counsel also claims that the expenses in preparing for and appearing at a lengthy EBT far outweigh the potential award in most actions, which are of relatively small amounts. In essence, the plaintiff’s counsel asserts that the medical providers will never recover their fees, if required to attend useless depositions.

The insurance carrier claims that it is entitled to an EBT of the plaintiff under the CPLR and UDCA. The defendant’s counsel asserts that the insurance carrier is not trying to harass the plaintiff, but rather an EBT of the medical provider is an essential discovery device for gathering information, material and necessary to the defense of no-fault law suits. The insurance carrier’s counsel claims that, after a review of the carrier’s records, no medical provider represented by the plaintiff’s law firm has ever appeared for an EBT requested by the defendant’s firm, despite a claim by defense counsel that the plaintiff’s law firm has served approximately two thousand four hundred and thirty six (2,436) law suits upon the defendant in the year 2002. The defendant’s counsel suggests that the plaintiff simply has no intention of ever complying with the CPLR, by producing a medical provider for an EBT.

UDCA §1101(a) requires that the Nassau County District Court adopt all of the procedures [*10]set forth in the CPLR with regard to disclosure.

CPLR 3101 states, in pertinent part, that:

“(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:

(1) a party, or the officer, director, member, agent or employee of a party;

(2) a person who possessed a cause of action or defense asserted in the action; …”

Accordingly, pursuant to CPLR 3101(a), in the Nassau County District Court there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof“. The words “material and necessary” should be interpreted liberally to “require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test to determine if the information sought is material and necessary is one of usefulness and reason” (see, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406- 407 [1969]; see also U S Ice Cream Corp. v. Carvel Corp., 190 A.D.2d 788, 593 N.Y.S.2d 861 [2d Dept 1993]). The term “necessary” has been construed to mean “needful” rather than “indispensable” (see, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, supra). “[I]f there is any possibility that the information was sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered ‘evidence material … in the prosecution or defense'” (In re Comstock’s Will, 21 A.D.2d 843, 844, 250 N.Y.S.2d 753, 755 [4th Dept 1964]). However, the Allen case makes clear that disclosure extends to all relevant information calculated to lead to relevant evidence, not just information that can be used as evidence in chief (see, CPLR 3101, Siegel, Practice Commentaries McKinney’s Cons. Laws of NY, Book 7B, CPLR c3101:7, at 18 citing West v. Aetna Casualty and Surety Co., 49 Misc.2d 28, 266 N.Y.S.2d 600 [1965] mod’d. 28 A.D.2d 745, 280 N.Y.S.2d 795 [3d Dept 1967]; see also Wiseman v. American Motor Sales, Corp., 103 A.D.2d 230, 479 N.Y.S.2d 528 [2d Dept 1984]). “If the data elicited is within the broad scope of CPLR 3101(a) as construed in the Allen case, the excursion should be called a ‘relevant inquiry’. That would leave [the term] ‘fishing expedition’ to describe the inquiry that goes beyond that extended compass … ” (Siegel, Practice Commentaries McKinney’s Cons. Laws of NY, Book 7B, CPLR c3101:8, at 18). Furthermore, matters relating to disclosure lie within the broad discretion of the trial court, as it is in the best position to determine what is material and necessary (see, Allen v. Crowell-Collier Publishing Co., supra; see also, Anderson v. Cornell University, 225 A.D.2d 946, 638 N.Y.S.2d 852 [3d Dept 1996]).

Applying the principles established in the Allen case to the issue of an insurance carrier’s right to an EBT of a medical provider in a no-fault case, the Court finds that provided certain conditions are met by an insurance carrier, the carrier is entitled to an EBT of a medical provider. The Court of Appeals has clearly held that, pursuant to the no-fault regulations, in a case in which no additional verification is timely sought, an insurance carrier must pay or deny a claim of no-fault [*11]benefits within thirty (30) days from the receipt of a claim or be precluded from interposing a defense to the denial of the claim, with limited exceptions (see, Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 [1997]). In the case of a defense of “medical necessity”, the Courts have held a medical provider is precluded from raising a defense of “medical necessity” where the denial was not timely and that summary judgment in favor of the medical provider is appropriate in such situations, provided the plaintiff submits proper proof of the claim and the amount of the loss (see, Presbyterian Hospital v. Maryland Casualty Co., supra.; Rombom v. Interboro, 186 Misc.2d 847, 721 N.Y.S.2d 474 [NY Sup App Term 2000]). Thus, when the insurance carrier has failed to issue a timely denial, no further discovery, which includes an EBT of the medical provider, is permissible on any defense, except if the insurance carrier’s defense falls within limited exceptions. The limited exceptions set forth in the Presbyterian case are where untimely denials are of no consequence because the insurer is not required to pay the claim and where the claim is ultimately deemed invalid (see, Presbyterian v. Maryland, supra). Such situations include, inter alia, fraud and a lack of coverage defense based upon a belief that the alleged injury does not arise out of the insured accident (see, Central General Hospital v. Chubb Group of Insurance Companies, 90 N.Y.2d 195 [1997]; Mount Sinai Hospital v. Triboro Coach, Inc., 263 A.D.2d 11, 699 N.Y.S.2d 77 [2d Dept 1999]).

If an insurance carrier has made a timely denial, based upon “medical necessity”, then its objective in seeking an EBT of the medical provider is not a means of harassing the medical provider, but rather the insurance carrier is trying to obtain relevant information on its defense of “medical necessity”. Certainly in cases where an insurance carrier timely denied the no-fault claim based upon the ground of “medical necessity”, the carrier is entitled to explore why the medical provider or treating physician determined the treatment to be necessary. However, if an insurance carrier seeks an EBT of a medical provider to inquire about the “medical necessity” of the treatment provided to the plaintiff’ s assignor when the insurance carrier has failed to timely deny the medical provider’s claim, then the motive for such request is questionable. The Court must also add, although not raised in the plaintiff’s papers, even if an insurance carrier has timely denied the medical provider’s claim based on “medical necessity”, a carrier’s motive for taking an EBT of a medical provider who performs scientific or objective testing of its assignor, due to a determination of “medical necessity” by the assignor’s treating physician, must also be questioned.

Furthermore, the Court rejects the plaintiff’s contention that the issues concerning “medical necessity” for treatment in no-fault cases are simple, thereby obviating the need for an EBT of the medical provider (see, Albatros Medical PC v. GEICO, 196 Misc.2d 656, 766 N.Y.S.2d 309 [NY City Civil Ct 2003]). In Albatros, the Court held that a medical provider is required to submit to an EBT in a no-fault case.

Lastly, any argument by the plaintiff that an EBT of a medical provider in some cases outweighs the potential award is unpersuasive. The Insurance Law allows a medical provider to arbitrate its no-fault claim and take advantage of the simplified procedures involved in arbitration (see, Ins. Law §5106[b]; 11 NYCRR 65.17). Thus, the plaintiff had a less inconvenient and less expensive forum in which to resolve its dispute. The plaintiff did not opt to arbitrate its claim. [*12]Rather, the plaintiff elected to proceed by way of litigation in the Nassau County District Court and thus it must comply with the discovery procedures set forth in the CPLR and the UDCA (see, UDCA §1101[a]; CPLR 3101; see also, Albatros Medical P.C. v. GEICO, supra. [“Plaintiff having elected to proceed by way of litigation in the courts, must comply with CPLR Article 31. In rejecting the expeditious and economical option of arbitration, plaintiff cannot now seek to use the rules of arbitration in the courts.”].

Accordingly, this Court holds that, provided certain conditions are met by an insurance carrier, a carrier is entitled to an EBT of a medical provider pursuant to the UDCA and the CPLR. A condition precedent to such EBT in cases involving the issue of “medical necessity” is a showing by the insurance carrier, that it issued a timely denial of the no-fault claim, based on the ground of “medical necessity”. In contrast, an insurance carrier is entitled to an EBT on a fraud ground and/or a lack of coverage ground, whether or not a timely denial was issued.

In view of the foregoing, the plaintiff’s motion for a protective order vacating the defendant’s notice of an EBT of the medical provider shall be granted on any case in which there was not a timely denial based upon “medical necessity”, unless the insurance carrier, in good faith can set forth a defense of fraud or lack of coverage.

Within thirty (30) days of the date of this decision, on all forty-eight (48) cases, the defendant shall provide this Court with a showing of a timely denial, based on “medical necessity” or submit an affirmation setting forth in good faith a need for the EBT, based upon a defense of fraud or lack of coverage. Such EBTs shall be scheduled within thirty (30) days of such showing. As it has in the past, this Court will entertain the option of holding such EBTs at the medical provider’s offices so as to reduce the inconvenience to such provider.

Notwithstanding the foregoing, in those cases where a disclosure stipulation has been entered into between the parties providing for the examination under oath of the plaintiff (to wit: in index numbers 15828/01; 15846/01; 24320/02; 32041/02; 32047/02; 32058/02; 32059/02; 32067/02; 32077/02; 32087/02; 32097/02 and 32115/02), the Court will not disturb the parties’ agreement. Such agreed upon deposition shall proceed and be held within forty five days (45) from the date of service of a copy of this decision and Order upon the plaintiff’s counsel.

(2)An Insurance Carrier in a No-Fault Action May Serve Interrogatories and Conduct an EBT of a Medical Provider, Provided Said Disclosure Devices are Not Repetitive.

The plaintiff claims that the insurance carrier’s request for an EBT is merely duplicative of the interrogatories already requested and the plaintiff’s answers to the interrogatories provide the insurance carrier with all the information that it requires for the defense of the instant claim. The insurance carrier claims that the interrogatories are mainly directed to the issues of the plaintiff’s licensing and billing particulars. The insurance carrier further claims that while documents are attached to the plaintiff’s interrogatories, a number of these documents are useless without an EBT [*13]of the medical provider who prepared the documents.

CPLR 3130 makes interrogatories and depositions mutually exclusive without leave of Court if interrogatories are served, in actions for damages for (1) injury to property, (2) personal injury or (3) wrongful death based solely on a cause of action for negligence. No such statutory restriction applies in a no-fault case. However, the Courts will not tolerate unwarranted repetitive uses of disclosure devices, such as multiple depositions or interrogatories (see, Blittner v. Berg and Dorf, 138 A.D.2d 439, 525 N.Y.S.2d 858 [2d Dept 1988]). Moreover, although the CPLR generally permits a party to utilize interrogatories and depositions, a party should complete one discovery device before conducting another one (see, Zlatnick v. GEICO, supra. and the cases cited therein — “Only when the first chosen discovery device does not satisfactorily yield information can a party utilize the other discovery device,” Id.). Thus, an insurance carrier should not be entitled to serve interrogatories and an EBT notice in a “knee-jerk” reaction to every no-fault lawsuit without demonstrating why responses to written interrogatories were somehow lacking.

In the instant cases, it is not clear whether the EBT demand and the interrogatories were served upon the plaintiff at the same time. The plaintiff apparently has answered all of the interrogatories. The defendant’s interrogatories consisted of twenty-four (24) questions. The interrogatories demanded answers and required documents to be attached. Contrary to the defendant’s contentions, questions four (4) through nine (9) are not merely licensing and billing questions. These questions request, inter alia, what diagnostic tests were performed and any notes and reports taken concerning the medical treatment.

Although questions four (4) through nine (9) are directed at the medical treatment of the plaintiff’s assignor and may indeed be duplicative of questions asked of a medical provider at an EBT, said EBT would certainly encompass additional questions on the issue of “medical necessity”and on the medical treatment provided to the plaintiff’s assignor. Thus, this Court does not find the deposition of the medical provider to be merely repetitive of the interrogatories. Furthermore, in these cases, the defendant’s counsel asserts that an EBT of the medical provider is necessary to explain the documents (i.e., notes and records) attached to the plaintiff’s interrogatories. Thus, in the cases before this Court, unlike the Zlatnick case, the insurance carrier has articulated the problem with the plaintiff’s responses to the defendant’s interrogatories and demonstrated the need for an EBT.

Accordingly, the plaintiff’s motion for a protective order, vacating the defendant’s notice for an EBT on the grounds of a repetitive use of a disclosure device is denied. However, repetition of questions may, in an appropriate circumstance, result in sanctions for frivolous conduct.

(3/4)An Insurance Carrier Involved in Civil Litigation for the Recovery Of No-Fault Benefits is Not Precluded From Requesting an EBT of a Medical Provider Because the Insurance Carrier Failed to Request an Examination Under Oath or Additional Verification as Permitted Under the New York Compilation of Codes Rules and Regulations. [*14]

The plaintiff asserts that an insurance carrier waives its right to an EBT of the medical provider under the New York Compilation of Codes, Rules and Regulations [hereinafter “NYCRR”], when an insurance carrier fails to request an examination under oath (hereinafter “EUO”) of a medical provider within thirty (30) days of receipt of the plaintiff’s no-fault claim. The plaintiff further claims that the defendant is trying to frustrate the purpose of the no-fault law by treating the plaintiff as an adversary in violation of the NYCRR. Moreover, the plaintiff claims that the insurance carrier waives its right to an EBT because it was required to request any additional verification from the plaintiff, including documentation concerning “medical necessity”, within ten (10) business days (for documentation) or thirty (30) calendar days (for an examination) of receipt of the claim by the insurance company. The defendant’s position is that the plaintiff’s arguments are frivolous with simply no basis in law.

Prior to April 5, 2002, the NYCRR did not require an injured person or assignee to attend an “EUO’ (see, 11 NYCRR former 65.12; Medical Soc. of State of NY, Inc. v. Levin, 185 Misc.2d 536, 712 N.Y.S.2d 745 aff’d. 280 A.D.2d 309, 723 N.Y.S.2d 133 [1st Dept 2001]). The current regulations, 11 NYCRR 65-1.1, effective April 5, 2002, do require a claimant to submit to an “EUO” “as may reasonably be required”. This Court is not certain what regulation was in effect at the time of all of these claims. Regardless, however, of what regulation was in effect, any argument that an insurance carrier’s failure to request an “EUO”or to seek additional verification under the NYCRR, thereby precludes an insurance carrier from requesting an EBT of a medical provider in a no-fault litigation, is without merit (see, Albatros Medical P.C. v. GEICO, supra). The new regulations cannot be used for any claim retroactively to require an EUO (see, Bronx Medical Services P.C. ex rel. Rivera v. Lumbermans Mutual Cas. Co., 2003 WL 21402045, 2003 Slip Opinion 51022(u) [Appellate Term, June 2003]). Moreover, under the new regulation, there is no discovery prohibition if litigation is chosen by a medical provider to recover no-fault benefits. Once again, the Court must state that the plaintiff elected to proceed by way of litigation in the Nassau County District Court and thus, it must comply with the discovery procedures set forth in the CPLR and the UDCA (see, UDCA §1101[a]; CPLR 3101; see also Albatros Medical P.C. v. GEICO, supra).

Accordingly, the portion of the plaintiff’s motion for a protective order, vacating the defendant’s notice of EBT, based upon the grounds that the insurance carrier failed to request an EUO or additional verification as permitted under the NYCRR is denied, as without merit.

(5)The Burden of Proving “Medical Necessity” Does Not Affect the Defendant’ s Right to Request an EBT of A Medical Provider.

The plaintiff claims that it does not have to prove “medical necessity” and that “medical necessity” is an affirmative defense to be proved by the defendant. The plaintiff further claims that no “medical necessity” questioning should be allowed until the defendant is compelled to produce a rebuttal witness who can authoritatively testify as to a lack of “medical necessity”. The defendant claims that the issue of “medical necessity” is an issue in the case, regardless of who bears the burden. [*15]

The Appellate Term has held that the burden of establishing whether a medical test performed by a medical provider on the injured party was a “medical necessity” is on the medical provider (see, Shtarkman Neurologist, P.C. as assignee of Marian Copeitiro v. Allstate Insurance Company, 2002 WL 32001277, 2002 Slip Op. 505684 [Appellate Term, 9th and 10th Jud Dists 2002]). Notwithstanding the above, a party may obtain disclosure regardless of which party has the burden of proof as to the issues sought to be disclosed (see, CPLR 3101; see also, Baxter v. Orans, 63 A.D.2d 875, 405 N.Y.S.2d 470 [1st Dept 1978]).

Accordingly, the portion of the plaintiff’s motion for a protective order for vacatur of the defendant’s notice of EBT, upon the ground that the defendant has the burden of proving “medical necessity”, is hereby denied without merit.

(6)“Special Circumstances” Do Not Exist Permitting the Plaintiff to Produce a Non-Party Medical Consultant Rather Than the Medical Provider at the EBT.

The plaintiff claims that where “special circumstances” exist, the examining party may be permitted to designate the individual to appear at an EBT. The plaintiff’s argument to support “special circumstances” is based upon an assumption by the plaintiff that the defendant’s response to the plaintiff’s EBT notice would be to produce a “claims representative”, rather than the individual(s) who actually performed the independent medical exam (hereinafter “IME”) or peer review. The plaintiff further claims that if the plaintiff must produce the medical provider for an EBT, then the defendant must produce the individual(s) who actually performed the IME or peer review at an EBT of the defendant. The defendant’s position is that the plaintiff fails to show “special circumstances” that would allow for the deposition of a non-party medical consultant. It should be noted that CPLR 3101(a)(4) is relevant to the examination of a non-party witness.

The Court is not certain whether, in the instant cases, EBTs have been requested of the insurance carrier, and/or whether the insurance carrier has objected to said EBTs. The Court is aware that in many of these cases, disclosure stipulations have been entered into providing for depositions of physicians, claims examiners and others with knowledge of the facts. As to these stipulations which have been “so ordered” by the Court, the Court will uphold the agreements. In those cases where no stipulations have been entered into, the issue of whom the insurance carrier must produce at an EBT must await a ripe issue and proper motion. The issue before this Court, on this motion, is whom may be produced at an EBT of the medical provider.

Absent compelling circumstances a party is entitled to produce the testifying witness of its choice ( see, Fernandez v. St. John’s Episcopal Hospital, South Shore Division, 70 A.D.2d 627, 416 N.Y.S.2d 638 [2d Dept 1979]). When additional persons are sought to be deposed, the examining party must carry the burden of demonstrating that the person previously deposed possessed insufficient knowledge or was otherwise inadequate (see, Fernandez v. St. John’s Episcopal Hospital, South Shore Division, supra). Thus, pursuant to the case law, the medical provider may produce the testifying witness of its choice. However, this witness must have adequate knowledge [*16]of the treatment and testing of the medical provider’s assignor. In the case of an individual medical provider, the only individual with sufficient knowledge to be deposed regarding the treatment of the assignor would be the actual medical care provider. In the case of a corporate entity, any one of the treating physicians may be produced.

In these cases, after a deposition of the plaintiff has been conducted, and in those rare cases where the defendant believes the individual produced by the corporate medical entity was insufficient, the defendant may submit an affidavit on notice to the Court requesting an additional EBT. If the facts warrant, the Court will require the plaintiff to pay for the cost of the additional EBT.

In view of the foregoing, the plaintiff’s motion requesting that a non-party medical consultant appear at the EBT for the medical provider, is denied.

(7)Court Supervised Discovery is Not Warranted in this Case.

The plaintiff requests Court ordered discovery pursuant to CPLR 3104, but sets forth no legal argument for the need for said request. The insurance carrier asserts that supervised discovery is not necessary in the instant case and would only unduly burden the Court.

CPLR 3104(a) states, in relevant part, that:

“Upon the motion of any party or witness on notice to all parties or on its own initiative without notice, the court in which an action is pending may by one of its judges or a referee supervise all or part of any disclosure procedure.”

The supervisory power, given to the Court by CPLR 3104(a) should be exercised sparingly and only when there is a “special circumstance” (see, DiGiovanni v. Pepsico, Inc., 120 A.D.2d 413, 502 N.Y.S.2d 23 [1st Dept 1986]). The Court does not find court-ordered supervision to be warranted at this time as “special circumstances” have not been shown, nor has the plaintiff even demonstrated that supervised discovery would be helpful.

(8)The Defendant is Not Entitled to Sanctions and Costs.

The defense attorney claims that sanctions are necessary under 22 NYCRR 130-1.1 because the plaintiff has engaged in frivolous conduct. The plaintiff opposes the defendant’s request for sanctions and claims that it has the procedural right under the CPLR and UDCA to challenge the propriety of the defendant’s EBT demands.

22 NYCRR 130-1.1(a) provides, in pertinent part, that: [*17]

The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.

22 NYCRR 130-1.1(c) defines conduct as frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the Court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

The Court does not find the plaintiff’s motion for a protective order to be frivolous, as the plaintiff’s arguments are not completely without merit, undertaken to delay or assert material factual statements that are false. Sanctions are simply not warranted in this case.

Accordingly, the defendant’s request for sanctions pursuant to 22 NYCRR 130-1.1 is hereby denied.

This constitutes the decision and order of this Court.

E N T E R:

DISTRICT COURT JUDGE

Dated:December 26, 2003

CC:Baker & Barshay, LLP [*18]

Law Offices of Teresa M. Spina

Caption endnotes:

Decision Date: December 26, 2003

Footnotes

Footnote 1: By order dated September 18, 2003, summary judgment was granted in favor of plaintiff and the defendant on the third and fourth causes of action

Footnote 2: Action discontinued by stipulation

Footnote 3: By order dated October 2, 2003, summary judgment was granted in favor of plaintiff defendant on the third through sixth and ninth and tenth causes of action

Footnote 4: By order dated September 18, 2003, summary judgment was granted in favor of the plaintiff the defendant

Footnote 5: By order dated September 22, 2003, summary judgment was granted in favor of plaintiff on the first and second causes of action, and in favor of defendant dismissing the third and fourth causes of action

Footnote 6: By order dated November 6, 2003, summary judgment was granted in favor of plaintiff the defendant on the first and second causes of action

Footnote 7: Action discontinued all assignors except Nohemy Marquez

Footnote 8: Action discontinued by letter

Footnote 9: Dismissed by Order dated December 3, 2003

Footnote 10: By order dated October 3, 2003, summary judgment was granted in favor of plaintiff defendant on the first, second, seventh and eighth causes of action

Footnote 11: By order dated September 29, 2003, summary judgment was granted in favor of plaintiff defendant on first and second causes of action

Footnote 12: “Party Benefits” are basically a reimbursement to a person for “basic economic loss” on account of personal injury arising out of the use or operation of a motor vehicle, less certain deductions prescribed by statue (Insurance Law § 5102[b]).

“First party benefits” means payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, less:

(1) Twenty percent of lost earnings computed pursuant to paragraph two of subsection (a) of this section

(2) Amounts recovered or recoverable on account of such injury under state or federal laws providing social security disability benefits, or workers’ compensation benefits, or disability benefits under article nine of the workers’ compensation law, or medicare benefits, other than lifetime reserve days and provided further that the medicare benefits utilized herein do not result in a reduction of such person’s medicare benefits for a subsequent illness or injury.

(3) Amounts deductible under the” applicable insurance policy ” (Insurance Law § 5102[b]).