Civil Court of the City of New York, Kings County

046391/10

A P P E A R A N C E S :

ATTORNEYS FOR PLAINTIFF:

Gary Tsirelman, P.C.

65 Jay Street, Third Floor

Brooklyn, NY 11201

ATTORNEYS FOR DEFENDANT:

Iseman, Cunningham, Riester & Hyde, LLP

2649 South Road, Suite 230

Poughkeepsie, New York 12601

Katherine A. Levine, J.

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

PapersNumbered

Notice of Motion and Affidavits Annexed………….. …………………………1

Notice of Cross-Motion and Affidavits Annexed.. ………………………….

Answering Affidavits………………………………………………………………….. .2

Replying Affidavit of defendant…………………………………………………….3

Exhibits………………………………………………………………………………………..

Other: ………………………………………………………………………………………….

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

This case presents raises a new twist to previous rulings that the notification requirements for verification requests, as contained in 11 NYCRR §§65-3.5 and 3.6, do not apply to examinations under oath (“EUOs”) that are scheduled prior to the insurance company’s receipt of claim forms (“pre claim EUO”).

Defendant Hartford Insurance Co. (“defendant” or “Hartford”) seeks summary judgment [*2]based upon the assignor’s failure to appear at both a pre-claim EUO, which was adjourned on consent, and an EUO noticed and scheduled subsequent to defendant’s receipt of the claim which, under precedent, triggers strict regulatory time deadlines for compliance with verification requests. Plaintiff Lender Medical Supply, Inc. (“plaintiff” or “Lender”) opposes defendant’s motion on the grounds that since the first scheduled EUO was adjourned on consent, defendant had to request that the assignor appear for two other EUOs, pursuant to 11 NYCRR §65-3.6(b), before it could deny the claim, which it failed to do.

Lender provided medical equipment to its assignor on September 18, 2009. Hartford, by letter dated October 9, 2009, scheduled the assignor for an EUO to be held on November 10, 2009. On October 23, 2009, after it had sent the EUO request but prior to the scheduled date of the EUO, Hartford received the claim from plaintiff. Defendant granted the assignor’s request for an adjournment by letter dated November 10, 2009 and rescheduled the assignor’s EUO for November 17, 2009. After the assignor failed to appear at the rescheduled EUO, the defendant issued a denial dated December 8, 2009 based upon the assignor’s failure to appear for both EUOs.

As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person …shall…as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same[11 NYCRR §65 – 1.1(d) [Sec. I. Conditions, Proof of Claim (b)]. Another condition to coverage under this section sets forth that an eligible person shall submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.”

11 NYCRR §65-3.5 details the verification procedures to be followed after the insurer receives the completed application for no fault benefits (NYS form N-F2). The insurance regulations provide for EUOs and IMEs as part of an insurer’s “entitlement to additional verification” following receipt of a provider’s statutory claim forms. Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc 3d 18, 19 (App. Term. 2d Dept. 2004), aff’d in pert part 35 AD3d 720 (2d Dept. 2006). See also, All-Boro Medical Supplies, Inc. v Progressive Ins. Co., 20 Misc 3d 554 (Civil Ct., Kings Co,. 2008); Lumbermen’s Mutual Casualty Company v. Inwood Hill Medical P.C., et al, 2005 NY Slip Op 51101(U), 8 Misc 3d 1014(A) (Sup. Ct., NY Co. 2005). An insurer may toll the 30 day period it has in which to deny a claim by properly requesting verification within 15 days from the receipt of the proof of claim form or bill (11 NYCRR §65.3.5). See, Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc 3d 723 (Civ Ct. Queens Co., 2004).

Where an EUO is requested as additional verification after receipt of the claim, the insurer must schedule an EUO within a reasonable time frame and as “expeditiously as possible.” Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 (App. Term, 2d Dept. 2008). See Bayside Rehab. & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542, 546 (Civil Ct., Richmond Co. 2009). If the “requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested., either by a telephone call or [*3]by mail. 11 NYCRR § 65-3.6(b). “A claim need not be paid or denied until all demanded verification is provided.” New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 569, 570 (2d Dept. 2004). See, Insurance Law § 5106(a); 11 NYCRR §§65-3.5(c), 65-3.8(a)(1).

Failure to submit a timely follow up request will void the tolling provisions of the time in which to submit a denial and will preclude a defendant from asserting the defense based on failure to produce requested verification, including failure to appear for a post-claim EUO. See, All-Boro Medical Supplies supra at 557; Kings Medical Supply Inc. v. Kemper Auto & Home Ins. Co., 2005 NY Slip Op 51450(U), 7 Misc 3d 128(A) (App. Term, 2 & 11th Dist. 2005). Therefore, in order for an insurer to predicate its denial based upon an assignor’s failure to appear for a post-claim EUO, it must prove that it sent both an original and follow up request and that the injured party failed to appear for both scheduled EUOs. See, Advanced Medical, P.C. v. Utica Mutual Ins. Co., 2009 NY Slip Op 51023(U), 23 Misc 3d 141(A) (App. Term, 2d Dept. 2009).

The detailed and narrowly construed verification procedures contained in 11 NYCRR 65-1.1(d) and 65-3.5(d) governing EUOs that are requested after receipt of a claim do not apply to EUO demands prior to the submission of a claim form. See Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 7 Misc 3d 18, 21 (App. Term, 2nd Dept. 2004). The right to an EUO prior to an insurer’s receipt of the claim is “not afforded by the verification procedures and timetables,” but rather by the mandatory personal injury protection, “which is independent of the verification procedures.” Id at 21. Furthermore, these detailed verification procedures are “not amenable to application at a stage prior to the submission of a claim form.” Id, at 21. See, Prime Psychological Services, P.C. (Ortiz) v. Nationwide Property and Cas. Ins. Co., 24 Misc 3d 230 (Civil Ct., Richmond Co. 2009) (an insurer not required to send EUO requests to the provider’s attorney for a pre claim EUO); Bayside Rehab., supra, an insurer need not notify the assignee medical services provider of pre claim IME cut off notice).

Therefore, an insurer is not obligated to send out a follow up request after an assignor failed to appears for a pre-claim EUO.^[FN1] Prime Psychological Services (Horne) v ELRAC, 2009 NY Slip Op 52579(U), 25 Misc 3d 1244(A) (Civil Ct., Richmond Co. 2009). It can properly deny the claim, retroactive to the date of loss, for the assignor’s failure to attend the one pre-claim scheduled IME so long as it mails the denial within 30 days of its receipt of the claim. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006); Amaze Medical Supply, Inc., 2006 NY Slip Op 50909(U), 12 Misc 3d 127(A) (App. Term, 2d Dept. 2006); Prime Psychological (Horne), supra; All-Boro, supra. [*4]

Here, defendant cannot deny the claim based upon the assignor’s failure to attend the EUO that was scheduled prior to defendant’s receipt of the claim. By letter dated November 10, 2009 defendant’s attorney confirmed that at the request of the assignor’s attorney, the EUO was adjourned and that Hartford would provide his client with one final opportunity to appear for an EUO on November 17, 2009. Defendant’s consent to the adjournment vitiated its right to count the assignor’s failure to appear at the EUO as a no show. See Vitality Chiropractic, P.C..v . Kemper, 14 Misc 3d 94 (App. Term, 2d Dept. 2006)(mutually agreed upon rescheduling of initial IME is not equivalent of failure to supply requested verification.)

Furthermore, once defendant received the claim from the plaintiff, it was required to adhere to statutory and regulatory scheme of verification for the processing of no-fault claims. All-Boro Medical Supplies, supra, 20 Misc 3d at 556-557. Thus, defendant was required to send a follow-up request for an EUO pursuant to 11 NYCRR §65-3.6(b), once the assignor failed to appear for the scheduled November 17th date. Having failed to issue a follow up request, defendant could not assert, as a matter of law, the assignor’s failure to appear for the EUO as its basis to deny the claim. See, All- Boro, supra at 557.

Accordingly, defendant’s motion for summary judgment is denied and the case is to proceed to trial.

The foregoing shall constitute the Decision and Order of the Court.

Dated: May 01, 2012___________________________

Katherine A. LevineJudge, Civil Court

Footnotes

Footnote 1:Insurer could have properly denied plaintiff’s claim upon plaintiff’s failure to show up for a pre-claim EUO as a violation of a condition precedent to coverage. See Neomy Medical, P.C. v. American Transit Ins. Co., 2011 NY Slip Op 50536(U), 31 Misc 3d 1208(A)(Civ. Ct., 2011).

Civil Court of the City of New York, Kings County

CV 076337/09

Sara Pankowski, Esq.

Attorney for Plaintiff

Gary Tsirelman, PC

65 Jay Street

3rd Floor

Brooklyn NY 11201

718-438-1200

Morgan MacKay, Esq.

Attorney for Defendant

Law Offices of Teresa M. Spina

170 Froehlich Farm Blvd.

Woodbury NY 11797

516-496-5822

Reginald A. Boddie, J.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for psychological services alleged to have been provided to the subject assignor. Plaintiff seeks reimbursement for an initial interview in the amount of $194.58, evaluation of records in the amount of $67.24, five hours of psychological testing in the amount of $696.50, and explanation and interpretation of results in the amount of $103.31 (plaintiff’s bill). Plaintiff was paid for the initial interview. The remainder of the services were denied as medically unnecessary (defendant’s NF-10).

The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denial, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issue for trial was lack of medical necessity.

Plaintiff rested, relying on the stipulation that it had established its prima facie case. [*2]Defendant’s witness was unavailable and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied. (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defense (CPLR 4401). Defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor, relying on the stipulation that it established timely and proper denials, and that the peer review report and medical records were in evidence. The court reserved decision and the parties submitted post-trial briefs on January 2, 2012 and January 12, 2012. After consideration of the evidence and the parties’ arguments, the court denies plaintiff’s motion and grants judgment to the defendant for the reasons indicated herein.

Under New York no-fault law, plaintiff must establish its prima facie case by demonstrating submission to the defendant of a claim form, proof of the fact and amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff did not offer any evidence establishing that the denial was untimely, conclusory, vague or without merit as a matter of law. Nevertheless, as a consequence of the parties’ prima facie stipulation, the burden shifted to defendant to prove the timeliness of its denial and the defense stated therein (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists 2004]). However, because the parties also stipulated that defendant timely denied the bills, the only issue for trial was lack of medical necessity.

Defendant “bears both the burden of production and persuasion” as to its defense of lack of medical necessity (Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005],citing King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 771 [Civ Ct, Kings County 2004]); and the sole evidence presented here by defendant is the peer report and medical records which were stipulated into evidence.

To meet its burden of proof at trial on the defense of lack of medical necessity, at a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity for the services for which reimbursement is sought (Nir, 7 Misc 3d at 546-547, [citations omitted]). To establish the factual basis, the defense must be supported by sufficient factual evidence or proof and cannot be conclusory (Nir at 547, citing Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 Slip Op 50565[U] [Civ Ct, New York County 2004]). A peer review report may be found to have insufficient factual basis “…if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim” (Nir at 547, citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 2004 NY Slip Op 24119 [App Term, 2d Dept 2004]).

Furthermore, the medical rationale referenced in a peer review report must be within the [*3]generally accepted medical or professional practice. “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Nir at 547, citing Citywide Social Work & Psychological Serv. PLLC v Travelers Indem. Co., 3 Misc 3d 608, 616 [Civ Ct, Kings County 2004]). A peer review report may be found insufficient when unsupported or controverted by evidence of “generally accepted medical/professional practice” (id.). However, where plaintiff rebuts the defendant’s evidence with its own demonstrating that the medical services were consistent with generally accepted medical practice, the defendant’s peer report may be accorded less weight, and the court may find that defendant failed to meet its burden (Nir at 547, citing see Elm Med. P.C. v Am. Home Assur. Co., 2003 NY Slip Op 51357[U] [Civ Ct, Kings County 2003]).

As a preliminary matter, the court notes that the peer review report of Michael H. Rosenfeld, Psy.D. was electronically signed and not notarized (see Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Radiology Today, P.C. v Geico Ins. Co., 20 Misc 3d 70, 71-72 [App Term, 2d & 11th Jud Dists 2008]; CPLR 2106). Despite this omission, the court is compelled to consider the report as direct evidence of defendant’s defense since the document was admitted pursuant to the parties’ stipulation; and a court may not cast aside an open-court stipulation absent proof it was entered into by “fraud, collusion, mistake, accident or other such ground” (Matinzi v Joy, 60 NY2d 835, 836 [1983]; In re Frutiger’s Estate, 29 NY2d 143 [1971]; Gage v Jay Bee Photographer, Inc.,222 AD2d 648, 649 [2d Dept 1995]). Here, no such proof was alleged or demonstrated.

The subject assignor, a thirty-seven year old female, was involved in a motor vehicle accident on January 8, 2008, and was alleged to have suffered head, neck and lower back pain, and gone home after the accident (Narrative Report at 2). The psychologist allegedly interviewed the assignor and gave her a mental status examination along with a series of self- administered checklist tests, including a Beck Depression Inventory (BDI), a Beck Hopelessness Scale (BHS), Beck Anxiety Inventory (BAI), Neuropsychological Symptom (NSC), Patient Pain Profile (P-3), and Posttraumatic Stress Diagnostic Scale (PDS) (id. at 4).

The peer review doctor, Michael H. Rosenfeld, Psy.D., a New York State Licensed Psychologist, whose report and resume were admitted into evidence, stated that he reviewed the patient’s records concerning the services provided by John R. Braun, Ph.D., as well as the reports and recommendations related thereto. In the report, he indicated:

Claimant is a 37-year-old female who alleges she was involved in a motor vehicle accident on January 8, 2008 and was evaluated by John R. Braun, Ph.D. from All Boro Psychological Services, P.C. from January 16, 2008 to January 23, 2008. The claimant received a diagnostic interview, a review of medical records, five hours of psychological testing and an explanation of results (Peer Report at 1). Claimant was the driver of a vehicle involved in a motor vehicle accident on 1/08/08 reportedly resulting in head, neck and lower back pain. There was no loss of consciousness, fractures or lacerations (id. at 2). “…[T]he initial subjective complaints included: increased general nervousness, fear of driving or riding in cars, nightmares, headaches, [*4]dizziness, irritability, etc.” (id.).

Dr. Rosenfeld stated, “Given the complaints, the initial intake was appropriate, the psychological testing was excessive, clinically unnecessary, and deviates from accepted standard practice in psychology” (id. at 2). Citing psychological reference material, Dr. Rosenfeld explained, such tests “should not be used routinely, but to address specific questions, the answer to which may alter the patient’s treatment.” He then set forth three basic criteria which, when met, establish the necessity of psychological testing within the profession, as follows:

1. The reason for testing must be based on a specific referral question or questions from the treating provider and related directly to the psychiatric or psychological treatment of the patient

2. The specific referral question or questions cannot be answered by means of diagnostic interview

3. The specific referral question or questions and testing results will have a meaningful impact on the rendering of a diagnosis and the course or outcome of treatment (id.)

He stated, in this case, none of the criteria were met and elaborated on the reasons why the administration of these tests was inappropriate; namely, that the testing would not alter the diagnosis or treatment of the patient in any meaningful way. He also stated review of the records is normally part of the initial interview and the explanation was unnecessary since the tests were not warranted (id. at 3).

Accordingly, the court finds that Dr. Rosenfeld’s peer review report sets forth a sufficient factual basis and medical rationale for the lack of medical necessity asserted in the denial. The court notes plaintiff has failed to rebut defendant’s evidence with its own testimonial or other documentary evidence (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 5232[U][App Term, 2d, 11th & 13th Jud Dists 2009], citing see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495 [App Term, 2d, 11th & 13th Jud Dists 2009]). Additionally, the court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. However, on these facts, the court finds defendant was not required to present an expert witness to provide live testimony at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal.

Therefore, the plaintiff’s motion for a directed verdict is denied. Defendant is granted a judgment in its favor, and the complaint is dismissed with prejudice.

This constitutes the Decision and Order of the court.

Dated: January 31, 2012

Brooklyn, NY

_______________________

Hon. Reginald A. Boddie

Judge, Civil Court [*5]

Civil Court of the City of New York, Kings County

CV 061389/09

Sara Pankowski, Esq.

Attorney for Plaintiff

Gary Tsirelman, PC

65 Jay Street

3rd Floor

Brooklyn NY 11201

718-438-1200

Morgan MacKay, Esq.

Attorney for Defendant

Law Offices of Teresa M. Spina

170 Froehlich Farm Blvd.

Woodbury NY 11797

516-496-5822

Reginald A. Boddie, J.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for psychological services alleged to have been provided to the subject assignor. Plaintiff seeks reimbursement for an initial interview in the amount of $194.58, evaluation of records in the amount of $67.24, five hours of psychological testing in the amount of $696.50, and explanation and interpretation of results in the amount of $103.31 (plaintiff’s bill). Plaintiff was paid for the initial interview. The remainder of the services were denied as medically unnecessary and for fees not in accordance with the fee schedules (defendant’s NF-10). [*2]

The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denials, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.

Plaintiff rested, relying on the stipulation that it had established its prima facie case. Defendant’s witness was unavailable, and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defenses (CPLR 4401). Relying on the stipulation, defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor on the ground that it established timely and proper denials, and that the peer review report and medical records were in evidence. The court reserved decision and the parties submitted post-trial briefs on January 2, 2012 and January 12, 2012. After consideration of the evidence and the parties’ arguments, plaintiff’s motion for a directed verdict is denied. Defendant’s motion for judgment is granted in part and denied in part for the reasons stated herein.

Under New York no-fault law, plaintiff must establish its prima facie case by demonstrating submission to the defendant of a claim form, proof of the fact and amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Here, plaintiff did not demonstrate the denial was untimely, conclusory, vague or without merit as a matter of law. Nevertheless, as a consequence of the parties’ prima facie stipulation, the burden shifted to defendant to prove the timeliness of its denials and the defenses stated therein (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists 2004]). Because the parties also stipulated that defendant timely denied the bills, the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.

Defendant “bears both the burden of production and persuasion” as to its defenses (Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005],citing King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 771 [Civ Ct, Kings County 2004]). To meet its burden of proof at trial on the defense of lack of medical necessity, at a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity for the services for which reimbursement is sought (Nir, 7 Misc 3d at 546-547, [citations omitted]).

To establish the factual basis, the defense must be supported by sufficient factual evidence or proof and cannot be conclusory (Nir at 547, citing Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 Slip Op 50565[U] [Civ Ct, New York County 2004]). A peer [*3]review report may be found to have insufficient factual basis “…if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim” (Nir at 547, citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 2004 NY Slip Op 24119 [App Term, 2d Dept 2004]).

Further, the medical rationale referenced in a peer review report must be within the generally accepted medical or professional practice. “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Nir at 547, citing Citywide Social Work & Psychological Serv. PLLC v Travelers Indem. Co., 3 Misc 3d 608, 616 [Civ Ct, Kings County 2004]). A peer review report may be found insufficient when unsupported or controverted by evidence of “generally accepted medical/professional practice” (id.). However, where plaintiff rebuts the defendant’s evidence with its own demonstrating that the medical services were consistent with generally accepted medical practice, the defendant’s peer report may be accorded less weight, and the court may find that defendant failed to meet its burden (Nir at 547, citing see Elm Med. P.C. v Am. Home Assur. Co., 2003 NY Slip Op 51357[U] [Civ Ct, Kings County 2003]).

In support of its defense of lack of medical necessity, defendant proffered the peer review report of Michael H. Rosenfeld, Psy.D., a New York State Licensed Psychologist, whose report and resume were stipulated into evidence. As a preliminary matter, the court notes that the peer review report of Dr. Rosenfeld was signed and notarized on November 14, 2007, one day after the date stamped on the denial. Despite this fact, the court is compelled to consider the report as direct evidence of defendant’s defense since a court may not cast aside an open-court stipulation, as here, absent proof it was entered into by “fraud, collusion, mistake, accident or other such ground” (Matinzi v Joy, 60 NY2d 835, 836 [1983]; In re Frutiger’s Estate, 29 NY2d 143 [1971]; Gage v Jay Bee Photographer, Inc.,222 AD2d 648, 649 [2d Dept 1995]). Here, no such proof was alleged or demonstrated.

Dr. Rosenfeld stated that he reviewed the patient’s records concerning the services provided by John R. Braun, Ph.D., the treating psychologist, as well as the reports and recommendations related thereto, and found the services allegedly provided not medically necessary. The assignor was a fifty-seven year old female, involved in a motor vehicle accident on May 18, 2007, and allegedly suffered head, neck, lower back, and bilateral knee pain (Narrative Report at 2). The court notes, Dr. Rosenfeld’s peer report incorrectly lists bilateral shoulder pain among the alleged injuries and omits the head and bilateral knee pain (Peer Review Report at 2).

Dr. Rosenfeld further stated, “[t]he claimant received a diagnostic interview, a review of medical records, five hours of psychological testing and an explanation of results” (id. at 1). Claimant went to Long Island College Hospital after the accident (id. at 2). ” There was no loss of consciousness, head trauma, fractures, or lacerations” (id.). “The initial subjective complaints included: increased general nervousness, fear of driving or riding in cars, nightmares, headaches, dizziness, sleep disturbance, feeling weak and fatigued, etc.” (id.). [*4]

Dr. Braun treated claimant from August 3, 2007 to August 10, 2007 (id. at 1). He performed a mental status examination and gave claimant a series of self-administered checklist tests, including the Beck Depression Inventory (BDI), Beck Hopelessness Scale (BHS), Beck Anxiety Inventory (BAI), Neuro-Psychological Symptom Checklist (NSC), Patient Pain Profile (P-3), and Posttraumatic Stress Diagnostic Scale (PDS) (Narrative Report at 4). The doctor billed for a diagnostic interview, a review of medical records, five hours of psychological testing and an explanation of results (plaintiff’s bill).

Dr. Rosenfeld stated, “Given the complaints, the initial intake was appropriate, however, the psychological testing was excessive, unnecessary, and deviates from accepted standard practice in psychology” (Peer Review Report at 2). He reasoned that the standard practice in psychology for establishing a diagnosis and developing a treatment plan is to conduct a thorough diagnostic interview and mental status examination of the patient. He stated, “Psychological testing is never considered necessary unless there are subtle or complex issues to investigate and the diagnosis cannot be determined based upon the clinical interview/mental status examination alone (i.e., testing could be necessary to rule out mental retardation, to rule out psychosis, to rule out a mild head injury, etc.).” (Id.)

Dr. Rosenfeld further stated this case was straightforward and without subtle or complex issues to investigate; the diagnosis and treatment plan should have been based on the interview and mental status examination alone; and the psychological testing was unnecessary and inconsistent with acceptable standards of psychological practice (id.). He indicated that the review of the records was medically unnecessary because it is normally part of the initial interview, and the explanation and interpretation of results was medically unnecessary since the tests were not warranted (id. at 3).

Plaintiff failed to rebut defendant’s evidence with testimonial or other documentary evidence (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 5232[U][App Term, 2d, 11th & 13th Jud Dists 2009], citing see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495 [App Term, 2d, 11th & 13th Jud Dists 2009]). The court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. Here, the court finds defendant was not required to present an expert witness to testify at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal. Accordingly, the court finds defendant successfully proved lack of medical necessity for four of the tests administered and the related explanation and interpretation of results.

The court limits the relief awarded because Dr. Rosenfeld’s report only meaningfully referred to and discussed four tests allegedly administered to the assignor, the BAI, BHS, BDI and PDS (see Nir, 7 Misc 3d at 548, citing Amaze, 3 Misc 3d 43). The peer review report did not discuss the NSC or P-3. Accordingly, the court finds Dr. Rosenfeld’s peer review report sets forth a sufficient factual basis and medical rationale for the lack of medical necessity of four of the six psychological services allegedly provided, the review of records, and the explanation and interpretation of results. The court finds defendant failed to meet its burden of establishing its defense of lack of medical necessity for the NSC and P-3 tests, and the relevant explanation and [*5]interpretation of results.

Finally, as to defendant’s defense of fees not in accordance with fee schedules, it was the “defendant’s burden to come forward with competent evidentiary proof’ supporting its fee schedule defenses” (Robert Physical Therapy v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 172, 175 [Civ Ct, Kings County 2006] [citations omitted]). Defendant had the burden to “…proffer sufficient evidence to establish as a matter of law that the amounts charged in said claims were in excess of the amounts permitted by the fee schedule” (Rogy Med. P.C. v Mercury Cas. Co., 23 Misc 3d 132[A]; 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009], [citations omitted]).

Here, defendant proffered no testimonial or documentary evidence to prove its fee schedule defense. Therefore, defendant’s fee schedule defense fails. Nevertheless, defendant proved lack of medical necessity for all but two of the services billed. Accordingly, a partial judgment is granted to plaintiff in the amount of $266.61, plus statutory interest from the date of filing, costs, and attorney’s fees. The balance of the claim is dismissed with prejudice.

This constitutes the Decision and Order of the court.

Dated:January 31, 2012 ______________________Hon. Reginald A. Boddie

Judge, Civil Court

Civil Court of the City of New York, Kings County

089993/09

Michael Weaver, Esq.

Bruno, Gerbino & Soriano, LLP

Attorneys for Defendant

445 Broad Hollow Road, Suite 220

Melville, NY 11747

631-390-0010

Law Offices of Melissa Betancourt, P.C.

Attorney for Plaintiff

155 Kings Highway, 3rd Floor

Brooklyn, New York 11223

718-336-8076

Lisa S. Ottley, J.

This action was commenced by the Plaintiff seeking payment of no-fault party benefits for services rendered on behalf of Sara Mounier pursuant to CPLR 5106(a) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.).

Defendant moves for an order pursuant to CPLR §3025(b), for leave to amend its Verified Answer, and upon this court granting defendant leave to amend its answer, for dismissal of the complaint pursuant to CPLR §3211(a) 5, under the doctrines of res judicata and collateral estoppel.

Discussion

Leave to amend a pleading pursuant to CPLR 3025(b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit. See, Edenwald Contr. Co. v. City of New York, 60 NY2d 957 [1983].

Based upon the documents submitted in support of its motion for leave to amend its Verified Answer, the court hereby grants defendant’s motion to amend its Verified Answer. See, Uptodate Medical Service, P.C., v. State Farm Mutual Automobile Insurance Company , 22 Misc 3d 128(A), 880 N.Y.S.2d 227 (AT 2nd, 11th & 13th Judicial Dists., 2009).

Next, this court will address the issue as to whether defendant is entitled to dismissal of the action on the grounds of res judicata and collateral estoppel.

In the case at bar, the defendant-insurer brought an action in Supreme Court, Nassau County, seeking declaratory relief by the filing of a Summons and Complaint which the court deemed to have been duly served upon all the defendants named within the action, which failed to appear and/or interpose or serve an answer in the action. [See, Exh. “A” annexed to defendant’s moving papers herein]. By notice of motion, the defendant herein, and the plaintiff in the Supreme Court action moved pursuant to CPLR § 3215 for an order and judgment granting plaintiff the relief sought upon default, which was granted by the Hon. Anthony L. Parga, on October 1, 2010.

The defendant moves for dismissal of this action for payment of no-fault benefits [*2]on the grounds of res judicata and collateral estoppel, inasmuch as the declaratory judgment held that no coverage existed due to the fact the loss resulted from a staged accident.

Plaintiff argues, that a declaratory judgment granted on default does not have preclusive effect, and therefore, collateral estoppel does not preclude a party from litigating the action.

Although there is case law in support of plaintiff’s argument, the cases in support of plaintiff’s argument are distinguishable from this case. As argued by defendant, in Magic Recovery Med & Surgical Supply, Inc. v. State Farm Mutual Auto Insurance Company, 27 Misc 3d 67, 901 N.Y.S.2d 774 (AT 2nd, 11 & 13th Jud. Dists., 2010), the insurance company failed to name the party in the declaratory action, therefore, the res judicata and collateral estoppel could not be granted. In EMA Acupuncture, P.C. v. Lumbermens Mutual Casualty Company, 27 Misc 3d 141, 911 N.Y.S.2d 692 (AT 2nd, 11 & 13th Jud. Dists., 2010), which was not the basis of a default declaratory judgment, but was based on whether an Order issued on default pursuant to CPLR §3216 which fails to specify whether the dismissal is with prejudice or on the merits, has a preclusive effect.

Recently, this Court in a decision by the Hon. Devin P. Cohen, denied defendant’s motion to dismiss on the ground of collateral estoppel. As in this case, the motion raised the question of the effect of a declaratory judgment order, issued on default with respect to collateral actions seeking to litigate the same issue. Judge Cohen provides a detailed analysis of the applicable law and policies underlying declaratory judgments, collateral estoppel and default judgments. See, Beford Medical Care, P.C., a/a/o Vincent Meyers v. Encompass Insurance Company, 31 Misc 3d 222, 915 N.Y.S.2d 452 [Civ. Ct., Kings Co., 2011].

Interestingly, however, the decision does not address the doctrine of res judicata. Perhaps, the defendant in that case, did not move for dismissal on the ground of res judicata.

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter once it is duly decided. See, Siegel, NY Practice §442 at 747 [4th Ed.]. Res judicata, or claim preclusion, is invoked when a party, or one in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same, or series of, transactions which were raised, or could have been raised, in the [*3]

prior action. See, Matter of Hunter, 4 NY3d 260 [2005]. Res judicata applies “when a different judgment in the second [action] would destroy or impair rights or interests established by the first. See, Matter of Hunter, 4 NY3d 260 [2005]; Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304.

In SZ Medical, P.C., Life Chiropractic, P.C., JH Chiropractic, P.C., New Wave Oriental Acupuncture, P.C., a/a/o Clinton Charles v. Erie Insurance Company, 24 Misc 3d 126(A), 889 N.Y.S.2d 884 [AT 2nd, 11th & 13th Judicial Dists., 2009], the court affirmed the dismissal of the case on the lower level, and held the following:

The determination as to whether there was coverage is crucial to both

plaintiffs and defendant herein, and arises out of the same transaction,

i.e., the subject accident (see e.g. Abraham v. Hermitage Ins. Co., 47

AD3d 855 [2008]; Sabatino v. Capco Trading, Inc., 27 AD3d 1019,

1020 [2006]), and a different judgment in the instant action would

destroy or impair rights or interests established by the Supreme

Court judgment (see, e.g. Schuykill Fuel Corp. v. Nieberg Realty

Corp., 250 NY at 306-307). Moreover, the record established that

defendant and the wholly owned subsidiary had the requisite privity

(see, e.g. Spasiano v. Provident Mut. Life Ins. Co., 2 AD3d 1466

[2003]). Consequently, plaintiffs were barred from relitigating the

claim pursuant to the doctrine of res judicata.

Thereafter, the First Department in Pomona Medical Diagnostics, P.C., a/a/o Jarrod Ward v. Metropolitan Casualty Ins. Co., 29 Misc 3d 138(A), 920 N.Y.S.2d 243 (1st Dept., 2010), citing SZ Medical, P.C., Life Chiropractic, P.C., JH Chiropractic, P.C., New Wave Oriental Acupuncture, P.C., a/a/o Clinton Charles v. Erie Insurance Company, 24 Misc 3d 126(A), 889 N.Y.S.2d 884 [AT 2nd, 11th & 13th Judicial Dists.], reversed the lower court’s denial of defendant’s motion for summary judgment, and held: “Contrary to plaintiff’s claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see, Trisingh Enters., Inc., v. Kessler 249 AD2d 45 [1998]; Robbins v. Growney, 229 AD2d 356 [1996].

Herein, the plaintiff-provider, as determined by the Supreme Court, was duly served with the Summons and Complaint in the declaratory action, and therefore, judgment was entered in favor of the defendant-insurer, on October 1, 2010, due to the [*4]provider’s failure to serve and file an answer to the Summons and Complaint. There is nothing in the record to indicate that the plaintiffs, Altercare, et .al., have moved to vacate the default judgment in the Supreme Court.

Accordingly, defendant’s motion to dismiss on the ground of res judicata is hereby granted.

This constitutes the order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

August 30, 2011

______________________________

LISA S. OTTLEY, A.J.S.C.

[*1]

Civil Court of the City of New York, Kings County, July 7, 2011

APPEARANCES OF COUNSEL

Law Office of Teresa M. Spina, Woodbury (Dominick Dale of counsel), for defendant. Gary Tsirelman, P.C., Brooklyn (Wesley Mead of counsel), for plaintiff.

{**32 Misc 3d at 716} OPINION OF THE COURT

Genine D. Edwards, J.

In the instant actions for no-fault benefits, bench trials were held on April 13, 2011 and April 14, 2011. After establishing how the bills were created and given to Israel & Israel for [*2]mailing, plaintiff’s witness, Vladmir Grinsberg, could not set forth how the bills were mailed. Mr. Grinsberg instead offered that the denial of claims indicated defendant received the bills. Plaintiff’s counsel contended that the defendant’s denial of claim forms were admissible as party admissions for the limited purpose of proving the bills were mailed and received. Defendant objected and argued that plaintiff has to lay a foundation for the admission of the denial of claim forms. Hence, a directed verdict should be rendered in defendant’s favor in all three actions.

This court requested post-trial memoranda regarding the admissibility of the defendant’s denial of claim forms as party admissions for the limited purpose of establishing that plaintiff mailed its bills to the defendant.

After due deliberation of the evidence adduced at trial, as opposed to documents annexed to a summary judgment motion, this court adheres to the Appellate Term’s ruling that denial of claim forms shall be admitted into evidence only upon the laying of a business record foundation. (Bath Med. Supply, Inc. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51030[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d Dept 2007].) Besides testifying that he received the denial of claim forms, Mr. Grinsberg failed to proffer any evidence to authenticate the denial of claim forms.

Accordingly, defendant’s motions for directed verdict in each of the three actions are granted because plaintiff failed to shoulder its prima facie burden.

Civil Court of the City of New York, Kings County

164656/07

Attorney for Plaintiff

Law Offices of Melissa Betancourt, P.C.

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorney for Defendant

Law Offices of Daniel J. Tucker

American Transit Insurance Co.

330 West 34th St., 10th Floor

New York, NY 10001

Katherine A. Levine, J.

This motion raises the issue of whether an insurer must issue a denial within 30 days of an injured party’s failure to appear for a post claim IME. The court concludes that since a failure [*2]to appear for a post claim is a violation of a condition precedent to the contract, as opposed to a policy exclusion, a denial on this ground is not subject to the preclusion rule.

Plaintiffs Neomy Medical, P.C., Perfect Point Acupuncture, P.C., and Chiropractic Back Care, P.C., (collectively “plaintiffs”), all medical service companies, commenced this action pursuant to Insurance Law 5106(a) to recover the sum of $5,854.55 for medical services they provided to their assignor Fan fan Both (“assignor” or “Both”). Defendant American Transit Ins. Co. (“American” or “defendant”) cross moved for summary judgment based on its claim that the assignor failed to appear at an independent medical examination (“IME”)(“IME no show”).

During oral argument, defendant conceded that only some of its denials were timely; ie mailed within 30 days of receipt of claim form. Defendant contended, however, that its late denials were not fatal since failure to appear for an IME is a violation of a condition precedent to the insurance policy which vitiates the contract and makes such s violation a non- precludable defense which survives a late denial. Plaintiff countered that an IME no show is a precludable defense. The court requested briefs solely on this issue.

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented. Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980). A plaintiff establishes a prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form has been mailed and received, and that payment of no-fault benefits was overdue.” Mary Immaculate Hosp. v. Allstate Ins., 5 AD3d 742, 743 (2d Dept.2004); Second Medical v. Auto One Ins., 20 Misc 3d 291, 293 (Civil Ct., Kings Co.2008).

Condition Precedent

11 NYCRR 65-1.1 (d) provides for the mandatory personal injury protection endorsement (“PIP”). Under the subheading entitled “Conditions”, “Action against Company,” the regulation provides that “No action shall lie against the [c]ompany unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” One provision under this subheading provides that the eligible person shall submit to medical examinations by physicians selected by or acceptable to the insurer…when, and as often as, the Company may reasonably require.” 11 NYCRR §65 – 1.1(d)[Sec. I. Conditions, Proof of Claim (b)]. Another condition to coverage under this section is that an eligible person shall, as may reasonably be required, submit to examinations under oath (“EUO”) by any person named by the insurer. Id. ^[FN1]

In Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 18, 20 (App. Term, 2d Dept. 2004) aff’d 35 AD3d 720 (2d Dept. 2006), the Appellate Term found that [*3]an insurer had the right to conduct an IME prior to its “receipt of the statutory claim form or its statutory equivalent which “under the regulations, trigger the verification process.” The right to an IME, at this juncture was not afforded by the verification procedures, as the “detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of a claim form.” Id at 21. The court then noted the “Conditions” section in the Mandatory PIP predicates the right to commence an action against the insurer upon an eligible injured person’s (“assignor”) compliance with the terms of coverage. Fogel, supra, 7 Misc 3d at 25 (Golia, J., conc. in part and diss. in part).”Where an eligible injured person fails to submit to a reasonably requested IME, the insurance policy, by its terms…affords no coverage for the otherwise eligible injured person.” 7 Misc 3d at 25 citing to Orr. v Continental Cas. Co., 205 AD2d 599 (2d Dept. 1994) (Under New York law, the insurer has the right to declare the contract at the end where the insured breaches a term upon which the contract was conditioned). Thus, an insured’s refusal to comply with a reasonably requested IME which was not opposed or adequately refuted, constitutes a complete defense to the claim warranting dismissal. 7 Misc 3d at 25.

In affirming the Appellate Term, the Second Department found that there was no distinction between the contractual remedies available for failure to appear for pre claim as opposed to post claim IMEs and that the ” appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy.” Fogel v. Progressive Cas. Ins. Co., 35 AD2d 720, 721 (2d Dept. 2006).^[FN2]

The First Department subsequently found failure to comply with a request for an IME, whether pre-or post claim was a violation of a condition of coverage which would preclude an action against an insurer for payment of health services provided. Inwood Hill Medical, P.C. v. General Assurance Co., 10 Misc 3d 18. 20 (App. Term, First Dept. 2005).In Inwood Hill Medical, P.C. v. General Assurance Co., 10 Misc 3d 18, 20 (1st Dept. 2005), the First Department ruled that “inasmuch as attendance at a medical examination is a condition of coverage under Section 65-1.1, it follows that an eligible injured person’s failure to comply with a request for an IME precludes an action against an insurer for payment of health services provided.”

Preclusion Rule

Insurance Law § 5106(a) sets forth that no fault benefits “are overdue if not paid within 30 days after the claimant provides proof of the fact and the amount of loss sustained.” Similarly 11 NYCRR §65-3.8 c require that “(w)ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or part.” See Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274, 278-79(1997) (“30 day rule”). [*4]

A timely disclaimer is not required, however, when the policy on which the claim rests does not, by its terms, cover the incident giving rise to liability. Handlesman v. Sea Insurance Co., 85 NY2d 96 (1994). “Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed. ” Mtr. Of Worcester Ins. Co. V. Bettenhauser, 95 NY2d 185, 189 ( 2000). However, a timely disclaimer is necessary when the denial of coverage is based upon a policy exclusion or a breach of a policy condition without which the claim would be covered. Id. See, Zappone v, Home Ins. Co., 55 NY2d 131 (1982),

Although there are legions of cases discussing the preclusion rule, “drawing the line” between a lack of coverage in the first instance ( requiring no disclaimer) and a lack of coverage based on a policy exclusion (requiring a timely denial) has proven to be “problematic”. Mtr. Of Worcester, supra , 95 NY2d at 189.

In Fair Price Medical v. Travelers Ins., 10 NY3d 556 (2008), the Court of Appeals further clarified when the non-preclusion rule applied. Citing to its prior decision in Central General Hospital v. Chubb Group, 90 NY2d 195 (1997), the Court cautioned that there was only one “narrow” exception to the preclusion rule for those situations where an insurance company raises the defense of lack of coverage.Fair Price, 10 NY3d at at 563. A determination as to whether a specific defense is precluded under the 30 day rule or falls within the exception entails a judgment as to whether the defense is more like a “normal exception ” from coverage such as a policy exclusion or a lack of coverage in the first instance, i.e. a defense “implicating a coverage matter.” 10 NY3d at 565.

The oft cited distinction between policy exclusions and lack of coverage was further elaborated upon in State Farm Mut. Auto Ins. V. Mallela, 4 NY3d 313 (2005). In finding that medical corporations that are fraudulently incorporated are not entitled to reimbursement the Court of Appeals pointed to 11 NYCRR 65-3.16(a)(12), which excludes from the meaning of “basic economic loss” payments made to unlicensed or fraudulently licensed providers “thus rendering them ineligible for reimbursement” 4 NY3d at 320. These revised regulations (which include the PIP) do not ” create not a new category of exclusion, but rather merely a condition precedent with which all claimants must comply in order to receive benefits under statute”. 4 NY3d at 321 citing Mtr. Of Medical Society of NY v. Serio, 100 NY2d 854.866 (2003).

In Travelers indemnity Co. v. Milan Medical, 2009 NY Slip Op. 31604U, 2009 NY Misc LEXIS 3867 (Sup. Ct. NY Co. 2009), the court found that the Mallela defense was a “coverage defense: and as such was not subject to the preclusion rule. Id at 5. See Multiquest PLLC v. Allstate Ins. Co., 17 Misc 3d 37 (App. Term, 2d Dept. 2007); Crossbay Acupuncture v. State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 (App. Term, 2d dept. 2007); Eastern Medical P.C. v. Allstate Ins. Co., 19 Misc 3d 775, 790 ( the challenged regulation in Mallela did not create a new category of exclusion but rather was “a condition precedent with which all claimants must comply in order to receive benefits.” ). The court rejected the defendant’s contention that the [*5]defense of fraudulent incorporation did not fit within the “tight restrictions of the exception to preclusion outlined in General Hospital v. Chubb, 90 NY2d 199. Chubb, like Mallela, “spoke to a threshold coverage matter” Id.

In the very recent decision of Unitrin Advantage Ins. Co. V. Bayshore Physical Therapy, 2011 NY Slip Op 1948 (App. Div., 1st Dept. 3/17/11), the First Department explicitly found that “the failure to appear for IMEs requested by an insurer…is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine. Id at 2 citing Central General Hosp. V. Chubb, 90 NY2d 195 (1997)(defense that injured person’s condition and hospitalization were unrelated to the accident was non precludable ). The First Department justified its finding that an IME no show was a non -precludable defense on the ground that a “breach of a condition precedent to coverage voids the policy ab initio.” Thus, the failure to appear for an IME cancels the contract as if there was no coverage in the first instance and the insurer has the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely. Id.

In light of the afore-mentioned precedent, it is clear that the claimant’s failure to comply with a condition precedent to coverage voids the contract ab initio and defendant is not obligated to pay the claim, regardless of whether it issued denials beyond the 30 day period. Furthermore, since the contract has been vitiated, defendant may deny all the claims retroactively to the date of loss. In light of the above, the case is dismissed with prejudice.

This constitutes the Amended Decision and Order of the Court which replaces the Decision and Order of the Court dated March 30, 2011, which is hereby recalled and vacated.

DATED: April 7, 2011__________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

Footnotes

Footnote 1:Since the right to conduct EUOs and IMEs both appear in the PIP, and thus constitute conditions precedent to coverage, the case law treats both of these examinations in the same fashion.

Footnote 2: The majority found that the language mandating compliance with the terms of the coverage as a condition precedent to bringing a lawsuit applied solely to “an insureds cooperation with the post claim verification protocols with regard to IMEs.” 7 Misc 3d at 22.

Civil Court of the City of New York, Kings County

161737/07

Ingrid Joseph, J.

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion Affidavits Annexed ………….1

Opposition/Answering Affidavits .. ..2

Replying Affidavits .

In this action to recover assigned first-party no-fault benefits, plaintiff filed a motion for summary judgment on or about September 16, 2009, which was returnable on October 6, 2009. The parties signed a written adjournment stipulation on the return date since the defendant failed to submit opposition. In the stipulation, the litigants agreed that the defendant would serve responsive papers upon plaintiff on or before January 29, 2010 and that any cross-motion served beyond the extended date would be denied as untimely. The defendant breached the agreement by serving the cross-motion and opposition on March 5, 2010, approximately one month after the due date. Consequently, the court rejected the defendant’s submissions when the parties appeared on March 29, 2010. The defendant now seeks an order pursuant to CPLR § 2221(e)(2) & (e)(3), granting leave to renew plaintiff’s prior motion for summary judgment and upon renewal, an order denying plaintiff’s motion and granting defendant’s cross-motion for summary judgment.

The issue before the court is whether the defendant can move for leave to renew its adversary’s motion on the basis that its cross-motion and opposition, which was rejected and not entertained, constitutes new facts?

The defendant’s untimely responsive papers, once rejected, constituted a default on the part of the defendant in opposing plaintiff’s motion (Lumbermen’s Mut. Cas. Co. v Fireman’s Fund American Ins. Co., 117 AD2d 588 [2d Dept 1986]; and see Omega Diagnostic Imaging, P.C. v MVAIC, 2011 WL 817397 [Sup. Ct, App Term 2nd, 11th and 13th Jud Dists 2011]; Manhattan Medical Imaging, P.C. v Nationwide Ins. Co., 27 Misc 3d 127(A)[Sup. Ct, App Term 2nd, 11th and 13th Jud Dists 2010]; Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co., 22 [*2]Misc 3d 126(A) [Sup. Ct, App Term 2nd, 11th and 13th Jud Dists 2008][the court’s grant of relief requested in an unopposed motion is considered a default judgment]). Even though the court allowed the defendant to orally address the issue of whether plaintiff met its prima facie burden, the resulting judgment in plaintiff’s favor was a default judgment. The court is cognizant that CPLR § 2221 is silent as to who may bring a motion to renew, but the Appellate Term has held that a party cannot renew a motion upon which it defaulted (Manhattan Medical Imaging, P.C., 27 Misc 3d 127(A)[Sup. Ct, App Term 2nd, 11th, 13th Jud. Dists 2010]). The appropriate procedural device for obtaining relief from a default judgment is a motion to vacate pursuant to CPLR § 5015(a)(1)(Eugene Di Lorenzo, Inc. v A.C. Dutton Lumber Co., Inc., 67 NY2d 138, 141 [1986]).

Even assuming arguendo that a motion for leave to renew was appropriate in this context or the court converted the motion into one to vacate the default judgment, the defendant has failed to meet the criteria for relief under either theory.

A motion for leave to renew, pursuant CPLR § 2221, creates an avenue for a party to provide the court with pertinent facts that it failed to include in the previous motion when such motion was before the court (8 NY Prac., Civil Appellate Practice § 5:2). The motion must be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion (CPLR § 2221(e)(2) & (e)(3); Rizzotto v Allstate Ins. Co., 300 AD2d 562 [2d Dept 2002]). In order to garner relief under CPLR § 5015, the defendant must show a reasonable excuse for the default and a meritorious defense.

The defendant’s cross-motion and opposition do not constitute new facts within the contemplation of CPLR § 2221, because the information contained therein is not newly discovered and would have been available when plaintiff’s motion was before the court but for the defendant’s untimeliness. Additionally, the defendant’s excuse of law office failure is untenable for purposes of CPLR §§ 2221 and 5015. Law office failure can be accepted as a reasonable excuse in the exercise of the court’s sound discretion, but the movant must submit supporting facts to explain and justify the default and mere neglect is not acceptable as a reasonable excuse (Cole-Hatchard v Grand Union, 270 AD2d 447 [2d Dept 2000] quoting Bravo v New York City Hous. Auth., 253 AD2d 510 [2d Dept 1998] and Davito v Marine Midland Bank, 100 AD2d 510 [2d Dept 1984]). The defendant’s excuse, that the task of responding to plaintiff’s motion was assigned to an attorney who left the firm, and the opposition due date had lapsed before the law office could “sort through” the former attorney’s caseload, represents nothing more than the law office’s neglect in managing its active cases. Furthermore, the defendant failed to provide details or submit any evidence in support of its explanation. Thus, the court finds that the excuse is conclusory and insufficient.

Accordingly, the defendant’s motion is denied.

This constitutes the decision and order of the court.

March 15, 2011_____________________________

HON. Ingrid Joseph

Judge, Civil Court

[*1]

Civil Court of the City of New York, Kings County, January 3, 2011

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, L.P., Melville, for defendant. Yelena Shlyamkovich, P.C., Brooklyn, for plaintiff.

{**2011 N.Y. Slip Op. at 1} OPINION OF THE COURT

Devin P. Cohen, J.

Defendant’s motion to dismiss pursuant to CPLR 3211 (a) (5) is decided as follows:

Procedural History

This action arises from an August 6, 2008 incident wherein plaintiff’s assignor allegedly sustained personal injuries and subsequently received treatment from plaintiff health services provider. On August 27, 2009, plaintiff commenced this action seeking to recover first-party no-fault benefits for services rendered to its assignor. Issue was joined by service of defendant’s{**2011 N.Y. Slip Op. at 2} [*2]answer on or about October 7, 2009.

Prior to the commencement of this lawsuit, defendant initiated a declaratory judgment action in Kings County Supreme Court, seeking a declaration that the incident of August 6, 2008 was a “staged or intentional incident” and therefore “not a covered event as defined by the applicable policy of insurance issued by Encompass” (plaintiff’s exhibit A). Plaintiff and its assignor, Vincent Meyers, were both named defendants in the declaratory judgment action. Neither plaintiff nor its assignor answered or appeared in the declaratory judgment action, and defendant moved for a default judgment.

On January 10, 2010 Justice Robert J. Miller granted the default judgment against plaintiff and its assignor and issued a declaratory judgment finding that defendant, “by reason of no coverage, is not required to provide a defense and/or indemnification to [plaintiff or its assignor] . . . in any current or future proceedings . . . including lawsuits seeking to recover no-fault benefits . . . arising out of the alleged incident of August 6, 2008” (defendant’s exhibit A at 3). Defendant now moves this court pursuant to CPLR 3211 (a) (5) for an order dismissing the complaint in this action, with prejudice, on the grounds of collateral estoppel based upon the order issued in the declaratory judgment action, and “for such other and further relief this court deems just and proper” (defendant’s motion to dismiss at 1).

This case raises the question of the effect of a declaratory judgment order, issued on default, with respect to collateral actions seeking to litigate the same issue. To address this question requires an analysis of the intersection of the applicable law and policies underlying declaratory judgments, collateral estoppel and default judgments.

Legal Standards

CPLR 3001 provides that “[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.” The general purpose of the declaratory judgment is often described as “to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” (James v Alderton Dock Yards, 256 NY 298, 305 [1931]). Thus, a primary goal in seeking a declaratory judgment is a decisive determination as to the rights of the parties in ongoing or future collateral actions.

The Court of Appeals in Kaufman v Eli Lilly & Co. (65 NY2d 449 [1985]) outlined the purpose of the doctrine of collateral estoppel and the circumstances under which it is applied. Generally, the doctrine “precludes a party from relitigating an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point” (id. at 455 [internal quotation marks omitted]). The doctrine stems from the principles of judicial economy and fairness (id. at 455).

In order for the doctrine of collateral estoppel to apply, two requirements must be satisfied: (1) “the identical issue necessarily must have been decided in the prior action and be decisive of the present action” (id. at 455); and (2) “the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (id. at 455). “The party seeking the benefit of [preclusion] has the burden of demonstrating the identity of the issues [while] the party [opposing] application [of the doctrine] has the burden of establishing the absence of a full and fair opportunity to litigate” (id. at 456).

The doctrine of collateral estoppel will only apply to matters “actually litigated and{**2011 N.Y. Slip Op. at 3} [*3]determined” in a prior action (Restatement [Second] of Judgments § 27). Without “actual litigation” there is no identity of issues (see Kaufman, 65 NY2d at 457). In general, courts have taken the position that “an issue is not actually litigated if . . . there has been a default” (Kaufman, 65 NY2d at 456-457; see Restatement [Second] of Judgments § 27, Comments d, e). More recently both in Zimmerman v Tower Ins. Co. of N.Y. (13 AD3d 137 [1st Dept 2004]) and Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co. (27 Misc 3d 67 [App Term, 2d Dept 2010]) appellate courts have reiterated their adherence to this principle and its application to declaratory judgments. Each court held that declaratory judgments issued on default would not be given preclusive effect in collateral proceedings.

The Parties’ Contentions

Defendant contends that collateral estoppel should apply and the case should be dismissed based upon the determination in the declaratory judgment action that the alleged accident was not a covered incident. Defendant contends that the decisive issue of coverage is the same in both actions. Furthermore, defendant (plaintiff in the declaratory judgment action) contends that plaintiff (a defendant in that action) had a full and fair opportunity to litigate the matter in the declaratory judgment action in that it was duly served with the summons and complaint and failed to appear or interpose an answer. Finally, defendant contends that, as a policy matter, “to not give preclusive effect to the Supreme Court judgment is to create a disincentive for a provider, or an Eligible Injured Person, to ever appear and litigate the issues of the Declaratory Judgment” (defendant’s reply at 2).

In opposition, plaintiff cites the general rule articulated above that collateral estoppel does not apply where there has been a default because the issues have not been “actually litigated” (see Zimmerman, 13 AD3d 137; Kaufman, 65 NY2d at 457). Plaintiff offers no explanation for its default in the declaratory judgment action.

Analysis

The line of appellate cases referenced above adheres to the principle that collateral estoppel does not apply where there has been a default in the prior action. It has been argued that when it first articulated this principle in Kaufman, the Court of Appeals did not intend it to be applied in such a bright-line manner, but rather intended a more case-specific evaluation of whether the issue had been “actually litigated” (see Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153 [1988] [in analyzing the application of collateral estoppel “no rigid rules are possible, because . . . factors may vary in relative importance depending on the nature of the proceedings”]; see Kaufman, 65 NY2d at 457). In the no-fault context specifically, the argument has been made that declaratory judgments rendered on default should be given collateral estoppel effect (see Magic, 27 Misc 3d at 69-76 [Golia, J., dissenting]). That said, in light of the current appellate case law, the court is constrained from dismissing this case on the basis of collateral estoppel.

However, the fact that collateral estoppel does not apply does not mean that the instant action should proceed. The efficacy of a declaratory judgment relies on the assumption that it will be given preclusive effect in collateral actions. To allow the action to continue as though the declaratory judgment (DJ) action never occurred would create a disincentive for no-fault providers to ever appear in declaratory judgment actions and would undermine the purpose of the declaratory judgment process. While plaintiff/DJ defendant cannot, under the case law, be prejudiced by the default finding, neither should plaintiff/DJ defendant be unfairly advantaged [*4]by its own default.{**2011 N.Y. Slip Op. at 4}

In general, a default judgment is a presumptively valid judgment entitled to enforcement, unless or until reversed or set aside (All Terrain Props. v Hoy, 265 AD2d 87 [1st Dept 2000]; but see also Fleet Bus. Credit, LLC v Michael P. Costelloe, Inc., 19 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2008] [limited exception for out-of-state defaults where defendant alleges a lack of personal jurisdiction in the prior action]). To avoid enforcement of a default judgment, a defendant must move to vacate and offer both a reasonable excuse for its default and a meritorious defense to the underlying action (CPLR 317). In the court’s view, a declaratory judgment, issued on default, should be treated in the same manner. Plaintiff’s proper recourse, if it wishes to proceed with this action, is to move to vacate the default judgment in the declaratory judgment action by offering a reasonable excuse for its failure to appear and a meritorious defense to that action.

The court is empowered to stay its own proceedings “[e]xcept where otherwise prescribed by law . . . in a proper case, upon such terms as may be just” (CPLR 2201). One instance in which the staying of a given action is often deemed appropriate is when another (collateral) action is pending (see Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2201:4 [discussing implied stay provision on a motion to dismiss pursuant to CPLR 3211 (a) (4)]). Since plaintiff contends that the declaratory judgment cannot be given preclusive effect because it was not “actually litigated,” this court will stay the instant matter to afford plaintiff the opportunity to move to vacate its Supreme Court default and, if granted, to “actually litigate” the coverage question in the declaratory judgment action.

Conclusion

For the foregoing reasons, the court exercises its discretion to stay this action indefinitely pending any vacatur of the default judgment in the collateral declaratory judgment action. This decision is without prejudice to defendant to remake or renew this motion in the event that plaintiff is unsuccessful in vacating the declaratory judgment.

[*1]

Civil Court of the City of New York, Kings County, December 7, 2010

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn, for plaintiff. Law Offices of Teresa M. Spina, Woodbury, for defendant.

{**30 Misc 3d at 486} OPINION OF THE COURT

Alice Fisher Rubin, J.

Both of the above-captioned actions are for recovery of unpaid no-fault medical bills. Plaintiff seeks to collect monies due after defendant denied reimbursement for bills received from plaintiff for medical services rendered to the assignors, Johnson and Diggs. Defendant’s denials were based on a lack of medical necessity.

During trials before this court on July 29 and August 4, 2010 to determine the issue of medical necessity of the treatments rendered, the court was presented with novel issues regarding the admissibility of some of defendant’s documents. The court reserved decision and instructed both parties to submit legal briefs discussing the issues. After reviewing the briefs and the law, the court finds that defendant did not establish its prima facie case and hereby enters judgment in favor of plaintiff.

Discussion

In both cases, defendant stipulated that plaintiff had established its prima facie case by proving that its claims were mailed and received by defendant, and that payment of no-fault benefits is overdue. Plaintiff stipulated that defendant issued timely and proper denials, but did not stipulate that defendant had a proper basis for the denials. The denials, written by Dr. Sohn, were based upon peer reviews, each authored either by himself, Dr. Ferrante or Dr. Snitkoff. Dr. Snitkoff was the only doctor not available to testify.

In the Johnson case, only one out of the four peer reviews presented was admitted into evidence. Two of the peer reviews not admitted were signed by Dr. Ferrante, but not notarized or dated; the third peer review not admitted was signed by Dr. Snitkoff, but not notarized. In the Diggs case, one peer review was admitted into evidence and two were not. The peer reviews{**30 Misc 3d at 487} not admitted, allegedly by Drs. Sohn and Snitkoff, were unsigned and not notarized.^[FN1]

The parties were to discuss the peer reviews not admitted into evidence in their memoranda. Generally, an unsigned peer review does not constitute admissible evidence and cannot be used to support a lack of medical necessity defense. (See CPLR 2106; Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co., 21 Misc 3d 127[A], 2008 NY Slip Op 51928[U] [App Term, 1st Dept 2008].) Additionally, a peer review must be properly authorized or affirmed, by a notary, for example, in order to be admissible. (See Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778, 778 [2d Dept 2008]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 631 [Civ Ct, NY County 1971].) This court is not aware of any law which requires a peer review to be dated. However, the court hereby deems the date to be a necessary component in order to further authenticate the document, and also to ensure that the peer review is accurately described in the denial.

Peer Reviews Not Admitted Into Evidence

Defendant’s Arguments

Defendant’s memorandum includes several arguments. First, defendant states that it provided plaintiff with an expert witness disclosure on July 1, 2010 and plaintiff did not object to any documents contained in the disclosure. It is defendant’s position that plaintiff has now waived any objections to any information that was included in the disclosure because there was ample time to review and take action before trial. Defendant also proffers that any defect which may have existed in the{**30 Misc 3d at 488} denials was cured by plaintiff stipulating that they were timely and proper.

Lastly, defendant states that because Drs. Sohn and Ferrante were present to testify about their own peer reviews, the reviews do not have to be in evidence for their testimony to be valid. In support of this argument, defendant relies on Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U], *2 [2010]), which states that, where the underlying documents relied upon by a doctor to write a peer review are not used for their truth,^[FN2] but only to form an opinion based on the information contained in the documents, the defendant does not have to establish the reliability of those documents.

Plaintiff’s Arguments

In its memorandum, plaintiff concedes to stipulating that defendant’s denials were timely, but emphasizes that it only stipulated that the denials were proper in form, not in substance. According to St. Barnabas Hosp. v Allstate Ins. Co. (66 AD3d 996, 996 [2d Dept 2009]), a proper denial of a claim for no-fault benefits must include not only standard form information prescribed by the Insurance Department, but also must “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (internal quotation marks and citations omitted). Plaintiff posits that defendant’s denials fail to state viable reasons with specificity.

Next, plaintiff notes that none of the documents relied upon by either Dr. Sohn or Dr. Snitkoff in creating their peer reviews were admitted into evidence, and that neither party had any personal knowledge of where the documents came from. Plaintiff also asserts that the undated peer reviews do not provide any evidence that they are the peer reviews referred to in defendant’s denials, and there was no testimony to provide an explanation for the omissions.

Finally, plaintiff argues that a peer review must be in evidence to be used as a basis for a denial. Plaintiff claims that an unsubstantiated, inadmissible peer review is equivalent to no peer review at all; therefore, a denial based on such a peer review is unsubstantiated as well. Plaintiff cites Innovative Chiropractic, P.C. v Travelers Ins. Co. (27 Misc 3d 141[A], 2010 NY{**30 Misc 3d at 489} Slip Op 50994[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]), which explains that a proper peer review “set[s] forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue.” Following this rationale, plaintiff asserts that before defendant can even prove the denials are proper, a peer review must first be in admissible form, which is not the case here.

Defendant Has Not Proved Its Prima Facie Case

Although plaintiff did not object to the documents contained in defendant’s expert witness disclosure before trial, defendant has not provided, and the court has not found, any authority to support the notion that plaintiff waived its ability to object to the denials during trial. Further, the court cannot support defendant’s argument that plaintiff’s stipulation cured the defects in defendant’s denials. At least one case has stated that a defective denial cannot be corrected nunc pro tunc beyond the time period where the denial is due. (See Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2d Dept 2004].) However, the Nyack case is silent on the process of how a defective denial is cured, even within the time period of when it is due.

Defendant’s final argument suggests that, although some of the peer reviews by Drs. Sohn and Ferrante were not in evidence, the doctors’ testimony regarding those documents is still valid. The Urban case cited by defendant, however, only states that a party does not have to establish the reliability of the underlying documents used to create a peer review, but does not state that the same is true for the actual peer review. As stated previously, there is case law providing that a peer review must be admissible to be used in establishing a lack of medical necessity defense.

Based on the law, neither of the peer reviews at issue in the Diggs case can be rendered admissible because they were not signed, regardless that one of the doctors was present to testify. Since the documents are not admissible, they cannot serve as a valid basis for defendant’s denials and, therefore, defendant is not able to establish its prima facie case.

In the Johnson case, because Dr. Snitkoff was not present, there is no way to authenticate his signature, and his peer review is therefore inadmissible. Although not notarized, it would seem as though Dr. Ferrante’s peer reviews are admissible because he was present in court to affirm his own{**30 Misc 3d at 490} signature. However, because both of his peer reviews fail to state the date they were signed, this court cannot ensure that the peer reviews presented were the ones relied upon and referenced in the denials. Based upon the aforementioned facts and law, defendant has not provided sufficient proof of its medical necessity defense and judgment is entered in favor of plaintiff.

Footnotes

Footnote 1: Plaintiff argues that the one peer review admitted in the Diggs case was in error because there was a month-long gap between the date of the peer review and the date it was signed, which is a violation of CPLR 4518. The court finds this argument to be misplaced and will not review the documents already admitted into evidence.

Footnote 2: For example, to prove that there was an injury or that a patient was treated as set forth in the records. (Urban Radiology, P.C., 2010 NY Slip Op 50987[U], *2.)

Civil Court of the City of New York, Kings County

056025/09

Devin P. Cohen, J.

Upon review of the foregoing papers, and after oral argument, the defendant’s motion to dismiss is denied.

In this action to recover assigned first-party no-fault benefits, defendant insurance provider moves pursuant to CPLR 3211(a)(1) and (7) to dismiss all causes of action in the complaint based on plaintiff’s alleged failure to attend two duly requested Examinations Under Oath (EUOs).

CPLR 3211(a)(1)

To obtain pre-answer dismissal pursuant to CPLR 3211(a)(1), defendant must allege that its defense is fully founded upon documentary evidence. Moreover, the documentary evidence offered in that defense “must resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff’s claim” (Teitler v Max J. Pollack & Sons, 288 AD2d 302 [2d Dept 2001]). “Documentary evidence” within the meaning of CPLR 3211(a)(1), must be “unambiguous and of undisputed authenticity” (Fontanetta v Doe, 73 AD3d 78 [2d Dept 2010] citing Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C3211:10, at 21-22). CPLR 3211(a)(1) does not anticipate or intend the use of affidavits submitted as testimony substitutes (see e.g. Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2d Dept 2003]).

Affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211” (Lawrence v Miller, 11 NY3d 588, 595 [2008]). In the context of CPLR 3211(a)(1), the narrow exception to this general rule might be affidavits used solely to establish the bona fides of other, genuinely documentary evidence. For instance, a certifying affidavit establishing a true and accurate copy of a filed deed might support a motion for dismissal under CPLR 3211(a)(1).

By its nature, the pre-answer motion to dismiss deprives the parties of the opportunity and obligation to have a trial, to exchange discovery, or for the non-moving party to have even a responsive pleading in the action. This is a drastic remedy, and should be reserved to cases which turn on an undisputed and undisputable document (e.g. a dishonored check, a deed, etc.). CPLR [*2]3211(a)(1) should not be used as a pre-answer alternative for what is more properly a request for summary judgment pursuant to CPLR 3212.

Defendant relies upon two affidavits to support the instant motion. The affidavit of Jackie Hackett describes the standard office procedure for generating and mailing verification requests, including EUO notices, as well as denials. The affidavit of calendar clerk Toyla Hogan alleges that the plaintiff failed to appear for the EUOs purportedly scheduled by the defendant. Presumably, this is the “documentary evidence” to which defendant’s motion refers.

Defendant’s affidavits are not the type of evidence required in order to succeed on a pre-answer motion to dismiss pursuant to CPLR 3211(a)(1). Rather, defendant’s proffered affidavits are testimonial in nature. They are essentially offered as substitutes for testimony which would otherwise be offered later at trial. These testimonial affidavits are, by their nature, neither unambiguous nor of undisputed authenticity. They depend heavily on the credibility attached to them as recitations of the facts of the case. They offer only one view (or two views) of the factual narrative which underlies the claim in question.

CPLR 3211(a)(7)

Defendant further asserts that the claim should be dismissed because plaintiff’s pleading fails to state a cause of action (CPLR 3211[a][7]). Under CPLR 3211(a)(7), the applicable test is whether the pleading states a cause of action, not whether the proponent of the pleading, in fact, has a meritorious cause of action (see Sokol v Leader, 74 AD3d 1180 [2d Dept, 2010]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 [2005]). “[O]n a motion to dismiss pursuant to CPLR 3211(a)(7), the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated” (Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2d Dept 2001]).

As previously established, the testimonial affidavits of Ms. Hogan and Ms. Hackett are not documentary evidence as required under CPLR 3211(a)(1). More germane to a CPLR 3211(a)(7) analysis, while these affidavits, if taken as true, might bear on the merits of plaintiff’s action, they do not affect whether or not the complaint itself states a cause of action. Here, plaintiff’s complaint states a cause of action in that plaintiff claims to have properly submitted bills to defendant for acupuncture services rendered to its assignor which have not been paid. Thus, dismissal is not appropriate under CPLR 3211(a)(7).

Ripeness

Defendant seems to suggest that this action should be dismissed as premature because plaintiff has failed to comply with defendant’s verification requests scheduling the EUOs, and that the failure to comply tolls the defendant’s time to deny the claim. Pursuant to NYCRR § 65.15(h), an outstanding verification request tolls the 30 day statutory period during which defendant must pay or deny a claim. Since an insurer is not obligated to pay or deny a claim while verification requests for that claim are outstanding, any lawsuit filed during such period is deemed premature (see Vista Surgical Supplies v General Assur. Co., 12 Misc 3d 129(A) [App Term, 2d Dept 2005]; Ocean Diagnostic Imaging, P.C. v Nationwide Mutual Ins. Co., 11 Misc 3d 135(A) [App Term, 2d Dept 2006]). However, in this case, defendant admits that it issued a denial for this claim on January 28, 2008, citing plaintiff’s alleged failure to appear for the scheduled EUOs. Having denied the claim, [*3]defendant essentially invited the plaintiff’s subsequent proceedings to challenge the denials.

For the reasons stated, defendant’s motion is denied. The plaintiff shall serve a copy of this decision and order on defendant’s counsel, with notice of entry. Defendant shall serve and file an answer in this matter within 30 days of plaintiff’s service of this order. This constitutes the decision and order of this court.