APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered January 25, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 25, 2006, affirmed, with $10 costs.

Plaintiff health care provider established a prima facie entitlement to summary judgment by submitting “evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue” (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Plaintiff sufficiently described a standard office procedure designed to ensured that the claims forms were properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). In opposition, defendant failed to raise any triable issues of fact.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered May 17, 2006, which denied its motion to vacate the notice of trial and statement of readiness.

PER CURIAM:

Order (Fernando Tapia, J.), entered May 17, 2006, affirmed, with $10 costs.

In this action seeking recovery of no-fault benefits totaling $1,118.58, the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: October 20, 2006

—[*1]

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 26, 2006, which permitted plaintiffs to withhold payments for claims that defendants-appellants had made before April 4, 2002 and dismissed plaintiffs’ causes of action for fraud and unjust enrichment regarding payments made before that date insofar as such causes of action were based on defendants’ improper corporate form, and order, same court and Justice, entered March 3, 2006, which denied defendants-appellants’ motion to strike plaintiffs’ affirmative defenses to defendants’ counterclaims insofar as said defenses were based on defendants’ improper corporate form, unanimously affirmed, without costs.

The Insurance Department regulation on claims for personal injury protection benefits (11 NYCRR 65-3.16 [a] [12]) states that “A provider of health care services is not [*2]eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York.” This regulation was initially promulgated to take effect on September 1, 2001, but implementation was stayed by court order until April 4, 2002. Relying on this regulation, the Court of Appeals has held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319 [2005]), and that “no cause of action for fraud or unjust enrichment would lie for any payments made by the carriers before . . . April 4, 2002” (at 322).

Mallela is dispositive as to plaintiffs’ fraud and unjust enrichment claims. Even if the quoted excerpt was dictum, we would find it highly persuasive. Plaintiffs’ attempt to distinguish Mallela by saying that their claims rest on the common law, not just on section 65-3.16 (a) (12), is unconvincing; in any event, the claims would not be cognizable (see Oxford Health Plans [NY] v BetterCare Health Care Pain Mgt. & Rehab, 305 AD2d 223 [2003]).

With respect to the bills that plaintiffs have not yet paid, the clear import of section 65-3.16 (a) (12) is that as of April 4, 2002, defendants were no longer eligible to be paid, even if they had already performed services. The very word “reimbursement,” used in the regulation, implies that the services had already been provided. Moreover, Mallela involved pre-April 4, 2002 claims, so it would be illogical to read that case as applying only to claims submitted on or after April 4, 2002 (see e.g. Metroscan Imaging P.C. v GEICO Ins. Co., 8 Misc 3d 829, 834 [Civ Ct, Queens County 2005], affd 13 Misc 3d 35 [App Term 2006]).

We do not find this allegedly retroactive application of the regulation problematic. “Ameliorative or remedial legislation . . . should be given retroactive effect in order to effectuate its beneficial purpose” (Matter of Marino S., 100 NY2d 361, 370-371 [2003], cert denied 540 US 1059 [2003]). The purpose of the regulations of which section 65-3.16 (a) (12) is a part was to combat fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 862 [2003]). Indeed, the notice of adoption stated that “The Insurance Department is taking this action in order to implement a new regulation which will ensure that the public receives the benefits of reduced fraud and abuse provided by the proposed regulation at the earliest possible moment” (NY Reg, May 9, 2001, at 19).

Contrary to defendants’ argument, we do not find that section 65-3.16 (a) (12) impaired vested rights or created a new right. The law prior to Mallela was unclear, so defendants did not have a vested right to reimbursement (see Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325, 330 [1990]). Because there were decisions going both ways before Mallela, that case did not create a “new” right that had never before existed.

We are not persuaded by defendants-appellants’ claim that the allegedly retroactive application of section 65-3.16 (a) (12) would violate article I, § 10 (1) of the US [*3]Constitution. There was no contract between defendants and plaintiffs; defendants’ right to reimbursement from plaintiffs was purely a creature of regulation, viz., 11 NYCRR 65-3.11. Concur—Buckley, P.J., Mazzarelli, Williams, Gonzalez and Sweeny, JJ. [See 11 Misc 3d 810 (2006).]

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendants appeal from so much of an order of the Civil Court, Bronx County (Larry Schachner, J.), entered January 31, 2005, as denied their motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Larry Schachner, J.), entered January 31, 2005, insofar as appealed from, reversed, without costs, and defendants’ motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first party no-fault benefits, the defendant insurers established their entitlement to summary judgment dismissing the complaint. Defendants timely denied the claims in the amounts of $818.89, $620.97 and $1,060.01 on the stated ground that plaintiff’s assignors did not respond to their requests for statements regarding the accident and medical treatment. Since it is uncontroverted on this record that plaintiff’s assignors did not comply with defendants’ repeated requests for statements, defendants’ motion for summary judgment dismissing the causes of action pertaining to the foregoing claims should have been granted (see 11 NYCRR 65.1-1 [d]; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).

Defendants are also entitled to summary judgment dismissing the remaining claims in the amounts of $793.24 and $604.34 on the ground of non-receipt of said claims, inasmuch as plaintiff’s submissions in opposition were insufficient to raise triable issues of fact.

This constitutes the decision and order of the court.
Decision Date: September 13, 2006

[*1]

Supreme Court, Appellate Term, First Department, August 15, 2006

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Baker, Barshay & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

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

Per Curiam.

Order entered March 18, 2005, reversed, with $10 costs, and the matter remanded for a new trial.

In this action to recover assigned first-party no-fault benefits, the parties stipulated to defendant’s receipt of plaintiff’s no-fault bills, the issuance of a timely denial by defendant, and that the sole defense was the lack of medical necessity for diagnostic computerized range of motion and muscle tests conducted by plaintiff. Defendant’s peer review doctor and trial expert testified that his peer review report and conclusion of lack of medical necessity were based upon a review of the records and reports prepared by plaintiff. Plaintiff moved to preclude the expert’s testimony on the ground that his testimony was based upon medical records not in evidence. The court granted plaintiff’s motion to preclude and directed judgment in favor of plaintiff.

We reverse. Plaintiff’s challenge to the reliability of the medical records and reports relied upon by defendant’s expert is unavailing given the fact that the records were prepared by plaintiff’s own principal, who personally treated the assignor and conducted the tests in question (cf. Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]). In these circumstances, plaintiff may not be heard to argue that defendant’s expert opinion was not derived from a “professional[,] reliable” source or to otherwise challenge the reliability of its own medical records and reports. Moreover, defendant’s expert, in forming his opinion, relied upon the records only to the extent that they documented the assignor’s injuries, plaintiff’s diagnosis [*2]and the treatment rendered.

Davis, J.P., Gangel-Jacob and Schoenfeld, JJ., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from so much of an order of the Civil Court, New York County (Eileen A. Rakower, J.), entered September 28, 2005, as denied its cross motion for summary judgment dismissing the complaint, or, in the alternative, to compel discovery.

PER CURIAM:

Order (Eileen A. Rakower, J.), entered September 28, 2005, modified (1) to dismiss the third and fourth causes of action pertaining to assignor Ramon Albino, and (2) to direct plaintiff to provide verified responses to questions 6-9, and 23 of the interrogatories, to respond to items 4-6, 8-9, 16, and 29-30 of defendant’s demand for discovery and inspection, and to comply with defendant’s notice of examination before trial requesting the deposition of Dr. Rafael; as so modified, affirmed, with $10 costs.

Defendant’s cross motion for summary judgment should have been granted to the extent of dismissing the third and fourth causes of action seeking no-fault benefits in the sum of $2,016.27 as to assignor Ramon Albino. It is undisputed on this record that the no-fault claims with respect to Albino were submitted to arbitration prior to the commencement of the action herein. By electing to arbitrate, plaintiff waived its right to commence an action to litigate any no-fault claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]).

Civil Court properly denied that branch of defendant’s cross motion which sought dismissal of the causes of action pertaining to assignors Odilis Garcia and Gilberto Hernandez. Defendant waived the affirmative defense of a “prior action pending” with regard to assignor Garcia by failing to raise the defense in its answer or in a pre-answer motion to dismiss (see CPLR 3211 (e); Charlton v United States Fire Ins. Co., 223 AD2d 404 [1996]). While defendant’s documentary submissions are sufficient to raise issues of fact with respect to its defenses that plaintiff is a fraudulently licensed corporation and that the medical services were provided by an independent contractor, they are insufficient to warrant judgment as a matter of law on these issues. [*2]

Defendant is entitled to discovery insofar as relevant to the foregoing defenses, as above indicated. This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: August 10, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Sharon A.M. Aarons, J.), dated April 4, 2005, which denied its cross motion to compel discovery and granted plaintiff’s motion for a protective order.

PER CURIAM:

Order (Sharon A.M. Aarons, J.), dated April 4, 2005, modified to direct plaintiff to fully respond to item 10 of defendant’s demand for discovery and inspection and to comply with defendant’s amended notice of examination before trial, and as modified, affirmed, with $10 costs.

Item 10 of defendant’s demand for discovery and inspection, which calls for information pertaining to the employment status of the treating health provider, is relevant to the issue of whether the medical services were performed by an independent contractor (see 11 NYCRR 65-3.11 [a]). Plaintiff only submitted a partial response to item 10 of defendant’s demand and is accordingly directed to fully comply therewith. Plaintiff is also directed to comply with the defendant’s amended notice of examination before trial, requesting the depositions of Dr. Dipak Nandi, plaintiff’s president, and of Nan Ni Gilbert, Lic. Ac., the treating provider, as their testimony bears directly upon the foregoing defense.

Plaintiff’s motion for a protective order with regard to defendant’s remaining discovery demands was properly granted even if the motion was not timely made, as the disclosure sought was palpably improper because it was duplicative (see Matter of Williamson, 261 AD2d 147 [1999]), unduly burdensome (see Albert v Time Warner Cable, 255 AD2d 248 [1998]), irrelevant (Duhe v Midence, 1 AD3d 279 [2003]), and pertained to defenses not at issue in this case. Finally, while an insurer may delay payment of a claim to investigate whether a professional corporation was fraudulently incorporated, defendant has failed to meet the threshold requirement of “good cause” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and thus is not entitled to disclosure pertaining to such defense. [*2]

This constitutes the decision and order of the court.

Decision Date: August 02, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated appeals, plaintiffs, as limited by their brief, appeal from three orders of the Civil Court, Bronx County (Sharon Aarons, J.), dated March 8, 2005, and four orders (same court and Judge), dated April 25, 2005, which, inter alia, granted defendant’s cross motions for summary judgment dismissing the complaints. Defendant cross appeals from two orders (same court and Judge), dated April 25, 2005, which denied its cross motions for summary judgment dismissing the complaints as against plaintiffs Maple Medical Acupuncture Services, P.C., a/a/o Jose Villanueva and Continental Medical Acupuncture Services, P.C., a/a/o Maria Tejeda.

PER CURIAM:

Orders (Sharon Aarons, J.), dated March 8, 2005 and April 25, 2005, which granted defendant’s cross motions for summary judgment, modified to deny defendant’s cross motions, and as so modified, affirmed, without costs; orders (Sharon Aarons, J.) dated April 25, 2005, which denied defendant’s cross motions for summary judgment, affirmed, without costs.

In these nine actions, consolidated for purposes of appeal, plaintiffs health care providers seek to recover assigned first-party no-fault benefits. Defendant moved for summary judgment in each action based on the identical defense that the treating acupuncturists were independent contractors rather than employees of plaintiffs providers.

Whether an employer-employee relationship exists generally is a question of fact and turns on the “degree of control exercised by a purported employer over the results produced by the work and the means used to achieve those results” (Cipriani Group, 1 NY3d 193, 198 [2003]; see also Matter of Charles A. Field Delivery Serv., Inc., 66 NY2d 516 [1985]). Here, summary judgment is unwarranted since issues of fact exist as to whether the acupuncturists who rendered the services underlying plaintiffs claims were employees or independent contractors. Contrary to defendant’s contention, plaintiffs’ letter dated April 1, 2002 is not dispositive of the issue (cf. Antell, D.O., PC v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137A [2006]). While the reporting of annual pay on an IRS 1099 form may be significant in assessing whether the [*2]acupuncturists were independent contractors or employees, it is only one of the relevant factors in assessing the relationship which existed between plaintiffs and the acupuncturists (see Bynog v Cipriani Group, 1 NY3d at 198).

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: July 27, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez, J.), dated October 11, 2005, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Julia I. Rodriguez, J.) dated October 31, 2005, affirmed, with $10 costs.

Plaintiff, a health care provider seeking to recover no-fault benefits for services rendered to its assignor, established a prima facie entitlement to summary judgment by proof that it submitted its claim form setting forth the fact and the amount of the loss and that payment of benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing examinations under oath (EUO) pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are inapplicable until the issuance of new or renewal policies containing the revised endorsement (see SZ Med. Servs. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A][2005]). Nor may defendant base its right to an EUO on the provisions of the policy requiring the claimant’s “cooperation” because the no-fault protection created by statute may not be qualified by the conditions of the liability portion of the insurance policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]).

This constitutes the decision and order of the court.
Decision Date: July 14, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered January 17, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 17, 2006), reversed, with $10 costs, motion denied, and matter remanded to Civil Court for further proceedings.

An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15[g][1][I]; 2[iii]; Elite Chiropractic Servs., PC v Travelers Ins. Co., 9 Misc 3d 137[A], 2005 NY Slip Op. 51735[U] [2005]). While plaintiff states that it responded to defendant’s verification request, no presumption of mailing was created because the affidavit of plaintiff’s representative neither stated that she actually mailed the verifications to defendant nor described plaintiff’s mailing office practice and procedures. Since plaintiff’s submission was insufficient to raise a presumption of receipt (see New York and Presbyterian Hospital v Allstate Ins. Co., AD3d [2006], 2006 NY Slip Op. 03558), its motion for summary judgment should have been denied.

This constitutes the decision and order of the court.
Decision Date: June 29, 2006