Civil Court of the City of New York, Kings County

24656/05

Arlene P. Bluth, J.

Upon the foregoing cited papers and after argument, plaintiff moves for summary judgment pursuant to CPLR § 3212. For the following reasons, plaintiff’s motion is granted.

In this action, plaintiff Capri Medical, P.C. seeks to recover first-party No-Fault benefits in the amount of $4,204.33 and statutory interest, costs, and attorneys’ fees for medical services it allegedly rendered to its assignor, Nail Abusov. In its moving papers, plaintiff submits following five bills which are the subject are this lawsuit: $1,593.37 (for date of service 4/9/03); $1,566.40 (for date of service 3/26/03); $302.17 (for date of service 3/19/03); $302.17 (for date of service 4/2/03); and $440.22 (for date of service 4/24/03). Plaintiff also submits the affidavit of its billing manager, Yelena Medvedik, who asserts that she personally mailed out the subject bills to defendant and [*2]that defendant issued “unreasonable and untimely denials” in response thereto.

The Court finds that plaintiff has established a prima facie entitlement to summary judgment as a matter of law by submitting proof in admissible form that the prescribed statutory claim forms, setting forth the facts and amounts of the losses sustained, were submitted to defendant, and that payment of no-fault benefits is overdue. See NYCRR § 65-3.8(c); D.A.V. Chiropractic, P.C. v Amer. Transit Ins. Co., 7 Misc 3d 133(A) [App Term, 2d and 11th Jud Dists 2005]; Triboro Chiropractic and Acupuncture P.L.L.C. ex rel. Tacopino v. Electric Ins. Co., 2 Misc 3d 135(A) [App Term, 2d & 11th Jud Dists 2004]. The burden now shifts to defendant to raise a triable issue of fact.

In opposition to this motion, defendant Auto One Insurance Company contends that it timely denied plaintiff’s claims on the ground of lack of medical necessity. However, defendant’s opposition fails to establish by competent evidence that it timely mailed the denials in question. “Proof of proper mailing requires evidence of actual mailing or. . .a standard office practice or procedure designed to ensure that items are properly addressed and mailed.'” See Comprehensive Mental v. Lumbermans Mut. Ins. Co., 4 Misc 3d 133(A) [App Term, 9th & 10th Jud Dists 2004]. The affidavit of Travis Miller is deficient in several respects. First, Mr. Miller states that he is “currently employed as Line Unit Supervisor,” but he does not explain what that means or what his job entails. Second, while he states that he has worked for defendant since August 2002, he does not state in what capacity he was employed prior to becoming Line Unit Supervisor.

As for his attempt to establish that defendant timely mailed the denials of the subject claims, he does not state that he personally mailed the denials, nor does he make clear how he knows that the denials in this case were timely mailed. Mr. Miller also does not establish that it is his duty to ensure compliance with defendant’s mailing procedures. See Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 135(A), 820 NYS2d 841 [App Term, 2d &11th Jud Dists 2006]; Contemp. Med. Diag. & Treatment, P.C. v. GEICO, 6 Misc 3d 137(A), 800 NYS2d 344 [App Term, 2nd & 11th Jud Dists 2005]. He “merely state[s] that the claims were timely denied without asserting personal knowledge of the mailing or setting forth sufficient facts to create a presumption of mailing.”Prestige Med. & Surg. Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127(A) [App Term, 2d &11th Jud Dists 2006]. Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co., 12 Misc 3d 145(A) [App Term, 2d &11th Jud Dists 2006]. The Court further notes that Mr. Miller’s affidavit fails to make any reference to the $302.17 bill for date of service March 19, 2003.

Defendant also submits the affidavit of its Mailroom Supervisor, Jay Santiago, who describes defendant’s procedures for mail collection first by mailroom personnel from bins throughout the office, and then by the United States Postal Service. However, in the absence of competent proof that defendant timely generated denials of the subject bills and deposited them for pickup, Mr. Santiago’s affidavit is unavailing. Therefore, defendant has failed to meet its burden, and plaintiff is entitled to summary judgment.

Accordingly, plaintiff’s motion is granted, and plaintiff is awarded judgment in the amount of $4,204.33 plus statutory interest, costs, and attorneys’ fees.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by______ on _______

Civil Court of the City of New York, Kings County

105406 KCV 2005

Lila P. Gold, J.

Plaintiff commenced this action under the No-Fault provisions of the Insurance Law to recover fees in the amount of $2670.39 for medical services provided to its assignor.

Before the court began to hear testimony, Defendant made a pre-trial motion to dismiss, alleging that there was a lack of standing to bring this action. Defendant then asked the court to order the Plaintiff to produce a contract between himself and Advanced Healthcare Solutions, L.L.C., the billing company for Plaintiff, in order to establish Plaintiff’s standing.

Standing is defined as a party’s right to make a legal claim or seek a judicial enforcement of a duty or right. Black’s Law Dictionary (8th ed. 2004), standing (n.). In the case before the court, Andrew Carothers M.D., P.C. has a legal claim to the no-fault benefits by way of an assignment provided to him for services rendered to the assignor (Exhibits 4, 8 & 12).

Furthermore, even though the Plaintiff was willing to show the contract to the court in camera, the court ruled that a contract showing the relationship between the billing company, Advanced Healthcare Solutions, and Andrew Carothers M.D., P.C. has no bearing on the latter’s issue of standing.

Plaintiff proceeded to offer evidence via the presentation of documents and testimony of Octavio Rodriguez, an office manager of Advanced Heathcare Solutions, L.L.C. in order to establish a prima facie entitlement for payment of the no-fault benefits.

To establish a prima facie case, a plaintiff is required to submit proof that it timely sent its claim for no-fault benefits to the defendant, that defendant received the claim and that defendant failed to pay or deny the claim within thirty days. (See Amaze Medical Supply Inc. v. Allstate Insurance Company, 3 Misc 3d 133A [App Term 2nd & 11th Jud Dists 2003]).

In this action Plaintiff’s evidence included the claim form (NF-3) (Exhibits 2, 6 & 10), [*2]the signed Assignment of Benefits form (NF-AOB) (Exhibits 4, 8 &12), proof of mailing (Exhibit 14), together with the a copy of the treating doctor’s referral (Exhibits 3, 7 & 11), and the MRI narrative (Exhibits 5, 9 & 13).

Plaintiff further strengthened its prima facie case by having Defendant’s denial form (NF-10) (Exhibit 25) admitted into evidence for the limited purpose of showing that the claim was received timely by the Defendant and that the denial was timely. (See A.B. Med. Serv., P.L.L.C. v. New York Central Mut. Fire Ins. Co., 3 Misc 3d 136(A); see also Kings Medical Supply, Inc. v. Country-Wide Ins. Co., 5 Misc 3d 767).

At this point Plaintiff rested and Defendant reiterated his position that Plaintiff did not establish a prima facie entitlement to the no-fault benefits. Defendant’s position was that Plaintiff did not lay the proper foundation to have its documents admitted into evidence.

However, the court finds that Plaintiff did in fact lay the proper foundation to submit the documents into evidence, via the testimony of Mr. Rodriguez. “Where an entity routinely relies upon the business records of another entity in the performance of its own business and fully incorporates said information into the records made in the regular course of its business, the subsequent record is admissible notwithstanding that the preparer lacked personal knowledge of the information’s accuracy.” (See Pine Hollow Medical P.C. v. Progressive Casualty Insurance Co., 2006 NY Slip Op 51870U) Since Advance Healthcare Solutions L.L.C. is a billing company whose regular business is to produce bills based on information imparted to them by Plaintiff and maintained these records in the regular course of its business, the proper business record foundation was established to admit the documents into evidence (CPLR 4518[a]). (See Plymouth Rock Fuel Corp. v. Leucadia Inc., 117A.D. 2d 727; see also West Valley Fire District No. 1 v. Village of Springville,264 AD2d 949)

Once Plaintiff established its prima facie entitlement, the burden shifted to the Defendant to substantiate their basis for denying the claim. The Defendant contended that the services provided lacked medical necessity and therefore Defendant was not obligated to pay the claims.

The Defendant did not call a single witness or introduce a single piece of evidence to substantiate the claim of lack of medical necessity. The Defendant relied on the cross examination of Plaintiff’s witness and the introduction of the peer review report by Plaintiff, which was part of the NF-10. Defendant was of the opinion that if a proper business record foundation was established to properly admit Plaintiff’s documents into evidence, then Defendant’s peer review report, which was in evidence as part of the denial form (NF-10) admitted into evidence, was sufficient to meet Defendant’s burden of proof that the medical services provided by Andrew Carothers M.D., P.C. lacked medical necessity.

The Court rejected Defendant’s argument and finds that Plaintiff’s purpose for submitting the peer review report with the NF-10 was for completeness and accuracy of the document presented to the court. Furthermore, the court admitted the NF-10 together with the peer review report for the limited purpose of showing that the claim was received timely by the Defendant [*3]and that the denial was timely. Plaintiff’s inclusion of the peer review along with the NF-10 does not make the peer review available to the opposing party to use for establishing their burden of lack of medical necessity, (See A.B. Med. Serv. P.L.L.C. v. Travelers Property Casualty Corp., 5 Misc 3d 214) rather, to fortify Plaintiff’s prima facie case. (See A.B. Med. Serv., P.L.L.C. v. New York Central Mut. Fire Ins. Co., 3 Misc 3d 136(A)

Accordingly, based on the evidence, the Court concludes that Defendant failed to sustain the burden of proof on the only issue before this court, lack of medical necessity. Judgment should be entered for the plaintiff in the amount of $2670.39, plus interest and attorneys’ fees as provided by the Insurance Law, together with the statutory costs and disbursements in this action.

This opinion constitutes the decision of the Court. A copy of this decision will be mailed to the parties.

Dated:November 14, 2006

____________________________

Lila P. Gold, J.C.C.

Encl: Exhibits submitted to the court.

Civil Court of the City of New York, Kings County

90590/2005

Genine D. Edwards, J.

This is a bench trial of an action for first-party benefits, attorney’s fees and statutory interest commenced by Andrew Carothers, M.D., P.C. (“plaintiff”) as assignee of Stacia Barrow, Neida Campos and Vadim Bondarenko (“assignors”) against Travelers Insurance Company (“defendant”), pursuant to the New York Insurance Law and the No-Fault regulations. Plaintiff billed defendant a total of $3,583.45 for medical treatment rendered to its assignors.

At the outset, the defendant moved to preclude the admission of plaintiff’s bills into evidence, arguing that the bills were defective on their face since the relationship between the provider and treating physician was not noted. This Court reserved its decision.

The case law is clear that the plaintiff will not be entitled to direct payment of no-fault benefits if the alleged medical treatments were provided by an independent contractor. MGM Psychiatry Care P.C. v. Utica Mutual Insurance Company, 12 Misc 3d 137(A) (App. Term 2nd & 11th Jud. Dists. 2006); Rockaway Boulevard Medical P.C., dba Queens Diagnostic Center v. Progressive Insurance, 9 Misc 3d 52 (App. Term 2nd & 11th Jud. Dists. 2005); Elite Medical Care, P.C. v. Travelers Property and Casualty Insurance Company, 12 Misc 3d 1183(A) (N.Y.C. Civ. Ct. Kings County 2006); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1061(A) (N.Y.C. Civ. Ct. Queens County 2005); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1069(A) (N.Y.C. Civ. Ct. Queens County 2005). In order to grant the defendant’s motion, the defendant had the burden to demonstrate that the subject services were rendered by an independent contractor. Defendant failed at that burden. The defendant did not proffer one scintilla of evidence that would persuade this Court that the subject services were performed by an independent contractor. Moreover, the fact that the bills did not indicate the relationship between the plaintiff and the treating physician did not compromise the plaintiff’s prima facie showing. Rockaway, supra.

Turning to the evidence adduced at trial, this Court finds that the testimony of Octavio Rodriguez, an employee of Advanced Healthcare Solutions, plaintiff’s billing agent, as well as the documents admitted into evidence establish plaintiff’s prima facie entitlement to no-fault benefits. It should be noted that Advanced Healthcare Solutions relied upon plaintiff’s business records in order to conduct its business, thus, via proper foundation, those records were admitted into evidence pursuant to the business records exception to the hearsay rule. Pine Hollow Medical, P.C. v. Progressive Casualty Insurance Company, 13 Misc 3d 131(A) (App. Term 2nd & 11th Jud. Dists. [*2]2006); Foster Diagnostic Imaging, P.C. v. General Assurance Company, 10 Misc 3d 428 (N.Y.C. Civ. Ct. Kings County 2005).

Instead of offering testimony or documentary evidence in defense of this matter, the defendant relied upon its cross-examination of Mr. Rodriguez. That examination failed to rebut the presumption of medical necessity that attached to the plaintiff’s claim forms. Accordingly, plaintiff’s motion for a directed verdict is granted. Judgment in favor of plaintiff in the following amounts: $912.00 for assignor Vadim Bondarenko; $879.73 for assignor Stacia Barrow and

$1,791.73 for assignor Neida Campos as well as statutory interest and attorney’s fees.

This constitutes the decision and order of the Court.

Dated: November 2, 2006

__________________________________

Genine D. Edwards, J.C.C.

Civil Court of the City of New York, Kings County

112247/04

Delores J. Thomas, J.

Upon the foregoing cited papers, the Decision/Order on this motion and cross-motion is as follows:

In this action brought by a health care provider to recover first-party no-fault benefits for services rendered to its assignors, Reginald Smalls and Kevin Johnson, plaintiff moves for an order granting summary judgment in its favor in the sum of $3,673.07 as to each assignor plus statutory interest and attorney’s fees. Defendant cross-moves for an order pursuant to CPLR 3211 (a) (5) dismissing the action.

To establish a prima facie entitlement to summary judgment, plaintiff must demonstrate that it submitted a proper proof of claim setting forth the fact and amount of losses sustained and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept]). The court finds plaintiff has established its prima facie entitlement to summary judgment.

Defendant contends the issue of timeliness of payment is immaterial in this dispute since [*2]plaintiff treated injuries did not arise from a covered accident. On April 4, 2005, Hon. L.A. Harris, Jr., of the Circuit Court for the County of Henrico, Virginia, granted defendant’s Petition for a Declaratory Judgment awarding it a default judgment and retroactively rescinding an insurance policy it had issued to Anthony Lindo (see Exhibit A annexed to cross-motion). Defendant states that it sought cancellation of the policy after it discovered Lindo made material misrepresentations on the insurance application. Plaintiff seeks to recover benefits under Lindo’s policy. Based on the retroactive cancellation of the policy, defendant asserts the thirty-day rule does not apply and the lack of coverage defense survives (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195). Therefore, defendant argues it is entitled to an order granting its cross-motion dismissing the complaint.

Plaintiff counters that defendant admits coverage existed at the time the assignments were made in July, 2004. It was not until November, 2004 that the policy was rescinded. Furthermore, plaintiff argues defendant has failed to lay a foundation for the documents submitted in support of its position. Plaintiff states that defendant has failed to attach an affidavit by someone with personal knowledge who can “corroborate and lay a foundation for the documents.” Moreover, plaintiff argues New York law, which does not provide for retroactive cancellation of an insurance policy, should apply as it has “a greater interest in protecting its innocent victims against motorists covered by an out of state insurance policy.”

Plaintiff’s contention that defendant’s cross-motion should not be granted because defendant has failed to lay a proper foundation for its evidence is unpersuasive. Defendant’s counsel indicates in her affirmation in support that she possesses knowledge of the facts based on a review of the files and that the documents submitted are true and correct copies. Defendant has submitted sufficient relevant documentary evidence to warrant consideration of its cross-motion.

Therefore, determination of the motion and cross-motion rests in a resolution of the conflict of law dispute between the two jurisdictions. Defendant claims that it properly canceled the policy retroactively under Virginia law. The policy was issued in Virginia based on factors which included that the insured was a Virginia resident, that the vehicle was registered in Virginia, and that it would be garaged in Virginia.

“Where there is a conflict of law relating to an insurance policy, the conflict must be resolved by application of the conflict of law rules relevant to contracts.” (Integon Insurance Company v Garcia, 281 AD2d 480.) Generally, courts now apply the “center of gravity” or “grouping of contacts” inquiry to determine which state has the most significant contacts to the dispute. In Eagle Insurance Co. v Singletary, et al. (279 AD2d 56 [2d Dept]), an action with a similar fact pattern to the instant action, defendant Singletary was injured in New York by a vehicle owned by a Mr. Suleiman who was insured by Integon Insurance Company. Integon did not dispute that there was coverage at the time of the accident. However, Integon denied coverage based on the retroactive cancellation of the policy it obtained under Virginia law after it determined the insured had made material misrepresentation on its insurance application. The Court found: “In sum, on the facts presented, New York’s governmental interests, when balanced against Virginia’s significant

contacts with the contract and legitimate governmental interest in protecting its honest policyholders from bearing the burden of paying claims incurred by dishonest policyholders, is not sufficiently compelling to warrant the application of New York law.” (Id., at 60; citation omitted.) Here too, the Court finds the application of Virginia law is proper. [*3]

Accordingly, plaintiff’s motion for summary judgment is denied and defendant’s cross-motion for an order dismissing the complaint is granted.

This constitutes the decision and order of the Court.

Dated:Brooklyn, New York

October 24, 2006

DELORES J. THOMAS

Judge Civil Court

Civil Court of the City of New York, Kings County

121948/2005

Genine D. Edwards, J.

In this action to recover No-Fault benefits, statutory interest and attorney’s fees, plaintiff makes a motion for summary judgment. Defendant cross-moves for the same relief on the ground that the services allegedly provided by the plaintiff were not medically necessary.

To establish a prima facie case of entitlement to No-Fault benefits the plaintiff must demonstrate that it provided defendant with a claim for services rendered, setting forth the facts and amount of the loss and that the claim was not paid nor denied nor was verification requested. Nyack Hospital v. Metropolitan Property & Casualty Insurance Company 16 AD3d 564 (2nd Dept. 2005); Mary Immaculate Hospital v. Allstate Insurance Company 5 AD3d 742 (2nd Dept. 2004); Careplus Medical Supply Inc. v. General Assurance Company 7 Misc 3d 126(A) (App. Term 9th & 10th Jud. Dists. 2005). If plaintiff’s burden is met then the defendant has the burden of proving that triable issues of fact exist. Montefiore Medical Center v. New York Central Mutual Fire Insurance Company 9 AD3d 354 (2nd Dept. 2004); Liberty Queens Medical, P.C. v. Liberty Mutual Insurance Company, 2002 NY Slip Op. 40420 (U) (App. Term 2nd & 11th Jud. Dists. 2002); A.B. Medical Services PLLC, DAV v. Allstate Insurance Company, 8 Misc 3d 137(A) (App. Term 2nd & 11th Jud. Dists. 2005). Upon such proof, the plaintiff is obligated to rebut such evidence or risk dismissal. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Insurance Company, 7 [*2]Misc 3d 822 (N.Y.C. Civ. Ct. Kings County 2005); Bedford Park Medical Practice P.C. v. American Transit Insurance Co., 8 Misc 3d 1025(A) (N.Y.C. Civ. Ct. Kings County 2005).

In the instant case, the plaintiff demonstrated its entitlement to no-fault benefits in the amounts of $129.28 and $182.86, via appending the defendant’s denial of claim forms to its motion. King’s Medical Supply Inc. v. Country-Wide Insurance Company, 5 Misc 3d 767 (N.Y.C. Civ. Ct. Kings County 2004); Capri Medical, P.C. v. New York Central Mutual Fire Insurance Company, 11 Misc 3d 1073(A) (N.Y.C. Civ. Ct. Kings County 2006); AT Medical P.C. v. Utica Mutual Insurance Company, 11 Misc 3d 142(A) (App. Term 2nd & 11th Jud. Dists. 2006); A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A) (App. Term 2nd & 11th Jud. Dists. 2004); Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc 3d 119 (2nd Dept. 2006). Also, plaintiff’s burden of proof for the claim in the amount of $297.12 was established since the defendant attached its denial of claim form, indicating that it received the claim, to its cross-motion. Fair Price Medical Supply Corp. v. ELRAC Inc., 12 Misc 3d 126(A) (App. Term 2nd & 11th Jud. Dists. 2006); Vista Surgical Supplies, Inc. v. Metropolitan Property and Casualty Ins. Co., 12 Misc 3d 130(A) (App. Term 2nd & 11th Jud. Dists. 2006).

With respect to the claim for the amount of $129.28, it is clear and plaintiff agrees that payment was made, albeit late. The query is whether plaintiff is still entitled to attorney’s fees. According to Insurance Law §5106, the plaintiff is entitled to recover attorney’s fees when the claim was denied or overdue. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 (1997); Function Supply v. Progressive Ins. Co., 9 Misc 3d 1123(A) (N.Y.C. Civ. Ct. Queens County 2005).

Now we move to defendant’s cross-motion. It is clear that Kelly Andre’s affidavit established that all of the subject denials were timely served upon the plaintiff. With respect to the claims in the amounts: $297.17 and $182.86, the defendant denied the claims based upon lack of medical necessity. In support of this contention the defendant attached an admissible peer review report that set forth a competent physician opinion. Thus, the defendant sustained its burden of production of a material issue of fact for trial. Triboro Chiropractic and Acupuncture PLLC v. Electric Insurance Company, 2 Misc 3d 135(A) (App. Term 2nd & 11th Jud. Dists. 2004); Hempstead Turnpike Open MRI and Imaging v. Progressive Insurance Company, 12 Misc 3d 137(A) (App. Term 9th & 10th Jud. Dists. 2006). However, upon review of the subject bills and the corresponding peer review report, this Court is not persuaded that the defendant is entitled to summary judgment. The presumption of medical necessity that attached to the claim forms has not been rebutted by the defendant’s peer review report. Bedford Park Medical Practice P.C., supra.

Accordingly it is hereby,

Ordered that plaintiff’s summary judgment motion is granted only as to the claim for attorney’s fees for the claim amount of $129.28. Judgment should be entered in favor of the

plaintiff in the amount of $60.00. It is further ordered that defendant’s cross-motion for summary judgment is denied. Issues of fact exist regarding the medical necessity of the claims in the amounts of $297.17 and $182.86.

This constitutes the decision and order of the Court.

Dated: October 12, 2006__________________________________

Genine D. Edwards, J.C.C.

Civil Court, Kings County

49724/04

Genine D. Edwards, J.

This is a trial of an action for first-party benefits, attorney’s fees and statutory interest commenced by PDG Psychological P.C. (“plaintiff”) as assignee of Sergey Potapov (“assignor”) against State Farm Insurance Company (“defendant”), pursuant to New York Insurance Law and the No-Fault Regulations. Plaintiff billed defendant a total of $2,758.76 for psychological treatment rendered to its assignor from October 2002 to February 2003. Defendant denied the claims due to a violation of the fraud provisions in its policy. The jury rendered a verdict in favor of the defendant. This Court reserved its decision regarding the parties’ directed verdict motions.

No-Fault reform was enacted to ensure speedy recovery of payment to providers of healthcare services rendered to those injured in automobile accidents. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 (1997). To this end, the No-Fault Regulations allow certain providers to receive direct payment from insurance companies. 11 NYCRR §65-3.11. Providers must submit forms that include the fact and amount of the loss within 45 days of the services rendered. 11 NYCRR §65-1.1; St. Vincent’s Hospital & Medical Center v. County Wide Insurance Company, 24 AD3d 748 (2nd Dept. 2005). Thereafter, insurers must make payment or deny the claim within thirty days. 11 NYCRR §65.15(g). However, where the insurer denies the claim due to a coverage issue the thirty-day period is not applicable. Central General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195 (1997).

FACTS

Plaintiff did not offer any witnesses to prove its prima facie case of entitlement to benefits. Instead, plaintiff first argued that pursuant to a prior decision on a summary judgment motion its prima facie case was established. However, a perusal of that decision reveals that Judge George Silver simply denied summary judgment. Judge Silver did not indicate that plaintiff’s prima facie case was made.

Secondly, plaintiff argued that this Court should take judicial notice of the exhibits that were attached to the summary judgment motion and are now a part of the Court file. This Court denied that application. Exhibits attached to motions are not automatically admitted into evidence via the judicial notice doctrine. At trial, a foundation for the admissibility of each [*2]exhibit must be laid. McArthur v. Wal-Mart Stores, Inc., 274 AD2d 378 (2nd Dept. 2000) (no proper foundation was laid for the admission of the exhibit); Funk v. Kaiser-Frazer Sales Corporation, 15 AD2d 548 (2nd Dept. 1961); Petchesky v. Brooklyn Terminal Market Ass’n., 266 A.D. 680 (2nd Dept. 1943); Hogan v. National Sellers, Inc., 256 A.D. 951 (2nd Dept. 1939); Kavanagh v. Passeggio, 222 A.D. 679 (2nd Dept. 1927); A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc. v. State Farm Mutual Automobile Insurance Company, 7 Misc 3d 822 (NY Civ. Ct. Kings County 2005); Universal Open MRI of the Bronx, P.C. v. State Farm Mut. Auto Ins., 12 Misc 3d 1151(A) (NY Civ. Ct. Kings County 2006).

Plaintiff’s third attempt at having the exhibits admitted into evidence was deemed successful. Plaintiff argued that pursuant to its Notice to Admit and defendant’s Statement in Reply to Request for Admissions, the exhibits were admitted by the defendant. Defendant’s Statement in Reply to Request for Admissions was not sworn, was made by an attorney and not the plaintiff, was not verified by the plaintiff and no rationale was articulated as to why the defendant could not admit or deny the requests. Defendant’s Reply to Request for Admissions amounted to a failure to respond. Therefore, according to ELRAC, Inc. v. McDonald, 186 Misc 2d 830 (NY Sup. Ct. Nassau County 2001), the exhibits were deemed admitted by the defendant. Thus, the subject bills, denial of claim form, assignment of benefit form and delay letters were admitted into evidence.

The plaintiff rested. The defendant made a motion for a directed verdict due to plaintiff’s failure to prove a prima facie case. This Court reserved its decision. The burden of production of evidence of an intentional collision shifted to the defendant. Mount Sinai Hospital v. Triboro Coach, Incoporated, 263 AD2d 11 (2nd Dept. 1999).

In support of its case, defendant proffered the testimony of Laura Cevallos, a Special Investigation Unit Investigator for State Farm Insurance Company. Ms. Cevallos explained her educational background and investigative training, including her training with the National Insurance Crime Bureau. Ms. Cevallos testified that the assignor’s policy initiated on August 18, 2002 and the accident occurred two months later. This automatically raised a red flag in Ms. Cevallos’ mind. There were multiple passengers in the vehicle and the assignor had many prior accidents. The subject accident was reported by an attorney and not by the assignor. According to Ms. Cevallos, these factors were all suspect. Ms. Cevallos testified that she reviewed the file maintained by the Special Investigation Unit; the transcripts of the examinations under oath of the passengers and the assignor; she took a statement from the driver of the other car; and attempted to obtain additional testimony from the assignor, but he did not cooperate.

Upon a claim committee review of the assignor’s file it was decided that the claims should be denied. Ms. Cevallos was part of the claim committee and prepared the proposal for denial of the claims because the accident was intentional as evidenced by several discrepancies between the transcripts of the examinations under oath of the passengers and the assignor, including where they were going; when they all met; the time of the accident; where the car was at the time of impact; any stops along the way; the names of the passengers. These discrepancies coupled with the other driver’s statement supported a denial of the assignor’s claims. The defendant attempted to have the transcripts of the examinations under oath admitted into evidence, but failed to lay the proper foundation. A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc., supra. [*3]

Ms. Cevallos was not present during the examinations under oath nor did she formulate any of the queries, but she requested that the examinations be conducted in order to compare the testimony with the other driver’s statement. She did not obtain any recorded statements from the passengers that were in the assignor’s car.

On cross-examination, Ms. Cevallos testified that there were also questions regarding damage to the assignor’s car. But she failed to bring any photographs of the assignor’s car and she did not bring her entire file. Ms. Cevallos testified that the other driver who rear-ended the assignor’s car indicated that there was no damage to the cars and “no contact between the cars”. According to Ms. Cevallos, the other driver indicated that the assignor stopped short. Ms. Cevallos admitted that the other driver also indicated that they were traveling at forty miles per hour, the assignor stopped short, but the other driver was able to stop and did not make contact with the assignor’s car. Ms. Cevallos also admitted that no one from State Farm Insurance Company examined the brakes on the assignor’s vehicle.

On re-direct examination, Ms. Cevallos testified that an individual discrepancy in the testimony was not determinative, but all of them taken together, coupled with the other driver’s statement, could not be explained away. In addition, the other driver did not file a claim with State Farm Insurance Company.

At the close of Ms. Cevallos’ testimony the defendant rested. Plaintiff did not provide any rebuttal evidence. Plaintiff made a motion for a directed verdict. This Court reserved its decision on that motion. After deliberation, the jury rendered a verdict in favor of the defendant.

ANALYSIS

Can responses to a Notice to Admit establish Plaintiff’s prima facie case at trial?

A Notice to Admit is a discovery tool used to expedite trial by eliminating proof of undisputed matters. Rosenfeld v. Vorsanger, 5 AD3d 462 (2nd Dept. 2004); Risucci v. Homayoon, 122 AD2d 260 ( 2nd Dept. 1986); ELRAC, Inc., supra. It is not intended to eradicate ultimate facts or fundamental or material issues that can only be resolved by a full trial. Sagiv v. Gamache, 26 AD3d 368 (2nd Dept. 2006); The Hawthorne Group, LLC v. RRE Ventures, 7 AD3d 320 (1st Dept. 2004); Vasquez v. Vengroff, 295 AD2d 421 (2nd Dept. 2002); Singh v. G & A Mounting & Die Cutting, Inc., 292 AD2d 516 (2nd Dept. 2002); Glasser v. City of New York, 265 AD2d 526 (2nd Dept. 1999); DeSilva v. Rosenberg, 236 AD2d 508 (2nd Dept. 1997); Rubino v. City of New York, 209 AD2d 681 (2nd Dept. 1994); Orellana v. City of New York, 203 AD2d 542 (2nd Dept. 1994).

In the case at bar, the plaintiff served a Notice to Admit with attachments that included, inter alia, its subject medical bills, a denial of claim form and an assignment of benefits form. At trial, due to the defendant’s failure to respond to the Notice to Admit, this Court deemed the documents admitted, and they were marked into evidence. However, upon further reflection and review of the relevant caselaw, it is clear that the plaintiff’s Notice to Admit and the documents attached thereto go to the heart of this matter, that is, plaintiff’s prima facie entitlement to no-fault benefits. Hence, according to the relevant caselaw, a Notice to Admit cannot be used to prove plaintiff’s case, which is material in this no-fault action. Indeed, while it may be argued that the defendant should have been able to verify the contents of its own denial of claim form, it is pellucidly clear that the defendant cannot verify the contents of the assignment of benefits form nor the subject bills. The contents of these documents are material to the instant case and [*4]cannot be admitted via a Notice to Admit. Sagiv, supra.

Considering the foregoing, plaintiff failed to prove its prima facie case. Plaintiff did not provide any evidence of the fact and amount of the loss; that the claim was untimely denied or that payment was not made; that its assignor assigned his right to payment of no-fault benefits to plaintiff and that the bills were submitted to the defendant. Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128(A) (App. Term 2nd & 11th Jud. Dists. 2003); Mary Immaculate Hospital v. Allstate Insurance Comapany, 5 AD3d 742 (2nd Dept. 2004); New York Craniofacial Care, P.C. v. Allstate Insurance Company, 11 Misc 3d 1071(A) (NY Civ. Ct. Kings County 2006); Inwood Hill Medical P.C. v. Allstate Insurance Company, 3 Misc 3d 1110(A) (NY Civ. Ct. New York County 2004); Ultimate Medical Supplies v. Lancer Insurance Company, 7 Misc 3d 1002(A) (NY Civ. Ct. Kings County 2004).

Although this Court need not consider the remaining issues it is compelled to briefly discuss the issues that plague trials involving staged accidents.

At a trial involving a claim for no fault benefits, who has the burden of proving that insurance coverage exists?

It is clear that there is a dearth of reported trial cases that discuss this hotly contested issue, and there are no appellate decisions. The plaintiff herein argued that since the defendant alleged “staged accident” as an affirmative defense then the defendant must prove that the staged accident precludes coverage. This Court is not persuaded by that argument.

The plaintiff, as the proponent of a claim for no-fault benefits, always maintains the burden of persuasion. A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc., supra; Universal Open MRI of the Bronx, P.C., supra; V.S. Medical Services, P.C. v. Allstate Insurance Company, 11 Misc 3d 334 (NY Civ. Ct. Kings County 2006). See also, Vasile v. Hartford Accident & Indemnity Company, 213 AD2d 541 (2nd Dept. 1995); Gongolewski v. Travelers Insurance Company, 252 AD2d 569 (2nd Dept. 1998). The plaintiff meets that burden by proving that it submitted the fact and amount of the loss to the defendant as well as nonpayment by the defendant or untimely denial by the defendant. SZ Medical, P.C., JH Chiropractic P.C., New Wave Oriental Acupuncture P.C. v. Country-Wide Insurance Company, 12 Misc 3d 52 (App. Term 2nd & 11th Jud. Dists. 2006); Contemp. Med. Diag. & Treatment, P.C. v. Government Employees Insurance Company, 6 Misc 3d 137(A) (App. Term 2nd & 11th Jud. Dists. 2005); Careplus Medical Supply Inc. v. Allstate Insurance Company, 9 Misc 3d 128(A) (App. Term 2nd & 11th Jud. Dists.2005); A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., LVOV Acupuncture P.C. v. Commercial Mutual Insurance Co., 12 Misc 3d 8 (App. Term 2nd & 11th Jud. Dists. 2006). With this proof comes a presumption of coverage. V.S. Medical Services, P.C., supra; Universal Open MRI of the Bronx, P.C., supra; A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc., supra; Amaze Medical Supply Inc. supra.

Thereafter, the burden of production, that is, providing an explanation for why there is no coverage, shifts to the defendant. Central General Hospital, supra; Mount Sinai Hospital, supra; A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc., supra; V.S. Medical Services, P.C., supra; Universal Open MRI of the Bronx, P.C., supra. This burden, in effect, allows the [*5]defendant to disprove the presumption of coverage, thus demonstrating its denial of plaintiff’s complaints. Palmier v. United States Fidelity and Guaranty Company, 135 AD2d 1057 (3rd Dept. 1987). Of course, there is no set standard by which the defendant will achieve its burden; the evidence must be judged on a case by case basis. The assertion “no insurance coverage” in defendant’s verified answer amounts to a denial of plaintiff’s allegations. Beece v. Guardian Life Insurance Company of America, 110 AD2d 865 (2nd Dept. 1985). The defendant is not proving an affirmative defense, wherein it has the burden of proof. Prime Medical P.C. v. Travelers Indemnity Co., 2 Misc 3d 1009(A) (NY Civ. Ct. Kings County 2004) (insurer has the burden of proving lack of medical necessity); Stand-Up MRI of the Bronx v. General Assurance Insurance, 10 Misc 3d 551 (NY Dist. Ct. Suffolk County 2005).

Here, plaintiff maintains the burden of persuasion, even if the defendant designated its denial as an affirmative defense. Sinacore v. State of New York, 176 Misc 2d 1 (NY Ct. Cl. 1998). If the defendant sustains its burden of production of a fact or founded belief that the accident was staged, then the plaintiff should submit rebuttal evidence proving that coverage existed or risk losing its claim. A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc., supra; Universal Open MRI of the Bronx, P.C, supra.

At trial, what is the standard of proof for proving insurance coverage?

This Court concurs with the recent decisions by Judges Jack Battaglia (A.B. Medical Services, PLLC, D.A. Chiropractic, P.C., Daniel Kim’s Acupuncture, P.C., Somun Acupuncture, P.C., Square Synagogue Transportation Inc. v. State Farm Mutual Automobile Insurance Company ), Arlene Bluth (V.S. Medical Services, P.C. v. Allstate Insurance Company), and Richard Velasquez (Universal Open MRI of the Bronx, P.C. v. State Farm Automobile Insurance Company). These cases have clearly and succinctly indicated that the ultimate question in the staged accident arena is: whether the incident was intentional or not? Thus, the standard of proof as to that issue is preponderance of the evidence. Id. It is plaintiff’s burden to prove by a preponderance of the evidence that coverage existed for the accident. The defendant has the opportunity to explain why there is no coverage. When all of the evidence has been submitted the finder of fact must determine whether the evidence preponderates in favor of the plaintiff or the defendant. V.S. Medical Services, P.C., supra.

Based upon the foregoing, the evidence offered by the defendant did not meet its burden of producing evidence of a fact or founded belief that the collision was intentional. The defendant failed to proffer admissible evidence to rebut the presumption of coverage. The fact that the accident occurred soon after the purchase of the policy and the testimony by Ms. Cevallos indicating that the assignor had a record of prior accidents, taken together or alone does not sustain defendant’s burden. More importantly, the defendant did not provide any admissible evidence regarding the specific discrepancies in the testimonies of the passengers and the assignor or the other driver’s statement. Indeed, the defendant never offered the other driver’s testimony at this trial.

Based upon the evidence provided at trial, the defendant’s motion for a directed verdict is granted based upon plaintiff’s failure to prove its prima facie case.

This constitutes the decision and order of this Court.

Dated: July 14, 2006______________________

Genine D. Edwards, J.C.C.

Civil Court, Kings County

047034/2004

Genine D. Edwards, J.

This is a bench trial of an action for first-party benefits, attorney’s fees and statutory interest commenced by Elite Medical Care, P.C. (“plaintiff”) as assignee of Dan Teper (“assignor”) against Travelers Property and Casualty Insurance Company (“defendant”) pursuant to the New York Insurance Law and the No-Fault regulations. Plaintiff billed defendant a total of $5,155.47 for medical treatment rendered to its assignor. The treatment was provided from January 2002 through July 2002.

At the outset, defendant made a motion to dismiss plaintiff’s complaint because the NF-3 forms (proof of claim) were defective. Defendant contended that there was an issue regarding the relationship of a health service provider and the plaintiff. Defense counsel stated that according to New York State information, Ahmed Salem (a named health care provider on several of the NF-3 forms) is the owner of plaintiff, but Mr. Salem allegedly admitted under oath that he is not the owner. Defendant also argued that the NF-3 forms were not pleadings and could not be amended as of right. Plaintiff responded by indicating that the subject treatment was performed in 2002 predating the 2004 NF-3 form. This Court reserved its decision on defendant’s motion.

The applicable insurance regulations regarding direct payment of no-fault benefits establishes that “an insurer shall pay benefits upon assignment directly to providers of health care services ” 11 NYCRR 65-3.11(a). Pursuant to this regulation defendant asserted that the plaintiff is not a “provider”. In support of this contention defendant alleged that the NF-3 forms submitted by plaintiff did not identify the relationship between the plaintiff and the treating physicians.

Defendant also argued that there is contradictory evidence regarding Mr. Salem’s relationship with the plaintiff.

Defendant is correct. No-fault benefits must be paid directly to providers of services. A.B. Medical Services PLLC v. Liberty Mutual Insurance Company, 9 Misc 3d 36 (2nd Dept. 2005); Rockaway Boulevard Medical P.C. v. Progressive Insurance, 9 Misc 3d 52 (2nd Dept. 2005); A.B. Medical Services PLLC, DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C., G.A. Physical Therapy P.C. v. Countrywide Insurance Company, 10 Misc 3d 249 (NY Civ. Ct Kings County 2005); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1061(A) (NY Civ. Ct Queens County 2005); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1069(A) (NY Civ Ct Queens County 2005). [*2]

If it is demonstrated that the billing entity or its employees are not the actual health care providers then they are not entitled to payment of no-fault benefits directly from the insurance company. A.B. Medical Services PLLC, DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C., G.A. Physical Therapy P.C., supra; Rockaway Boulevard Medical P.C., supra; Health and Endurance Medical P.C. v. State Farm Mutual Automobile Ins., 2006 NY Slip Op. 51191(U) (App. Term 2nd & 11th Jud. Dists. 2006); Boai Zhong Yi Acupuncture Services v. Allstate Insurance Co., 2006 NY Slip Op. 51288(U) (App. Term 2nd & 11th Jud. Dists. 2006). Moreover, this defense cannot be waived and is not subject to preclusion for failure to timely deny. Rockaway Boulevard Medical P.C., supra; M.G.M. Psychiatry Care P.C. v. Utica Mutual Insurance Company, 2006 NY Slip Op. 51286(U) (App. Term 2nd & 11th Jud. Dists. 2006).

However, as in Multiquest PLLC, 10 Misc 3d 1061(A), supra, the defendant herein failed to provide any competent evidence that Mr. Salem was an independent contractor and not plaintiff’s employee. In addition, the defendant predicated its motion to dismiss upon the insufficiency of the NF-3 forms, without proving that it requested verification of the information provided therein. Rockaway Boulevard Medical P.C., supra. Hence, defendant’s motion must fail.

Turning to the trial, the plaintiff proffered the testimony of Viktoria Beylana, an employee of Maugust, Inc. Plaintiff hired Maugust Inc. to handle its billing and collection matters. Ms. Beylana testified that she received all of the medical paperwork from the plaintiff then prepared and mailed the bills. She also handled plaintiff’s incoming mail, denials and verification requests. Ms. Beylana responded to denials by submitting further information to the insurance company. Ms. Beylana identified nine bills and two letters to the defendant, which were marked into evidence. She had no knowledge as to the employment relationship of the health care providers and the plaintiff. Plaintiff’s counsel never questioned Ms. Beylana about an assignment of benefits form nor did Ms. Beylana identify same. Absolutely no evidence was presented regarding assignment of benefits. Upon the plaintiff resting, the defendant made a motion for a directed verdict due to plaintiff’s failure to prove a prima facie case.

The insurance regulations prescribe when a health care provider may receive direct payment from an insurer. 11 NYCRR 65-3.11(b). Specifically, the provider must have a properly executed assignment. 11 NYCRR 65-3.11(b)(2)(i). It is axiomatic that such assignment must be proved before the provider is entitled to receive “assigned” no-fault benefits. A.B. Medical Services PLLC Daniel Kim’s Acupuncture P.C. D.A.V. Chiropractic P.C. v. State Farm Mutual Automobile Insurance Company, 4 Misc 3d 141(A) (App. Term 9th&10th Jud. Dists. 2004); Siegel, M.D. v. Progressive Casualty Ins. Co., 6 Misc 3d 888 (NY Civ. Ct Kings County 2004); Vista Surgical Supplies, Inc. v. Utica Mutual Insurance Co., 7 Misc 3d 833 (NY Civ. Ct Kings County 2005); Inwood Hill Medical P.C. v. Allstate Insurance Company, 3 Misc 3d 1110(A) (NY Civ. Ct Kings County 2004); Multiquest, PLLC, 10 Misc 3d 1069(A), supra. In the instant case, the plaintiff did not introduce evidence of a “properly executed assignment”. Thus, plaintiff failed to prove a prima facie case of entitlement to no-fault benefits.

This Court is aware of the many summary judgment decisions that have found that the defendant waives its right to raise the deficiencies in the assignment of benefits forms when the denial was untimely and/or did not allege such defects. Nyack Hospital v. Metropolitan Property & Casualty Insurance Company, 16 AD3d 564 (2nd Dept. 2005); Nyack Hospital v. Encompass Insurance Company, 23 AD3d 535 (2nd Dept. 2005); Chiropractic Neurodiagnostics, P.C. v. Travelers Indemnity Co., 11 Misc 3d 644 (NY Civ. Ct New York County 2006); SZ Medical P.C. v. Country -Wide Insurance Company, 2006 NY Slip Op. 26194 (App. Term 2nd & 11th Jud. Dists. 2006); Delta [*3]Diagnostic Radiology, P.C. v. Progressive Casualty Insurance Co., 11 Misc 3d 136(A) (App. Term 2nd & 11th Jud. Dists. 2006); Hospital for Joint Diseases v. Allstate Insurance Company, 21 AD3d 348 (2nd Dept. 2005); Multiquest PLLC, 10 Misc 3d 1061(A), supra. However, those decisions discuss deficiencies in the forms. This Court is faced with rendering a decision in a bench trial of a no-fault action where there is lack of proof of an assignment. To be certain, a broad interpretation of a “technical defect” in the claim forms as discussed in Chiropractic Neurodiagnostics, P.C., supra, does not include the scenario where, at trial, there is no proof of an assignment at all.

Certainly, this Court is not being called upon to assume or speculate that an assignment existed in this matter. Accordingly it is,

ORDERED that, judgment should be entered in favor of defendant and the complaint is dismissed.

This constitutes the decision and order of the Court.

Dated: July 13, 2006 __________________________________

Genine D. Edwards, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, June 21, 2006

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff. Melli, Guerin & Wall, P.C., New York City, for defendant.

OPINION OF THE COURT

Arlene P. Bluth, J.

The above-captioned three cases were consolidated for trial before this court on June 5, [*2]2006. On that date, counsel for both parties stipulated to the facts set forth below, taking the joint position that what remained were issues of law. On June 12, 2006, counsel for both parties submitted briefs on the following issues: (1) May a physical therapist use a billing code found in the medicine fee schedule where such services do not appear in the physical medicine fee schedule? and (2) May a physical therapist bill for range of motion and muscle testing when an evaluation and management are billed for on the same day? After considering the parties’ stipulations and briefs, the court makes the following findings.

Findings of Fact

The three cases before this court on stipulated facts all involve claims for first-party no-fault benefits for physical therapy services rendered to plaintiff’s assignors. Defendant paid some claims and denied others, and plaintiff sued to recover the unpaid amounts. Except as noted, in all three cases the parties stipulated to plaintiff’s prima facie case and to defendant’s timely denial of the bills in question.

For the claims brought under index number 46885/05, the parties stipulated that as to the bills for assignor David Cardoza, plaintiff is entitled to judgment in the amount of $317.84 plus statutory interest, costs, and attorney’s fees. The balance of those bills, totaling $651.04, remains in dispute and were denied based on denial code 129: “This procedure is not listed in the NY state [sic] fee schedule for this provider specialty. If reported with an evaluation and management service, this procedure is inclusive.” As to the bills for assignor Ayodele Sunmola, the parties stipulated that plaintiff is entitled to judgment in the amount of $476.76 plus statutory interest, costs, and attorney’s fees. The balance of those bills, totaling $976.56, remains in dispute and were denied based on the same denial code, 129.

For the claims brought under index number 47943/05, the parties stipulated that as to the bills for assignor Avis Brown, plaintiff is entitled to judgment in the amount of $158.92, plus statutory interest, costs, and attorney’s fees. The balance of the charges, totaling $325.52 ($166.60 $158.92), were denied under denial code 129 and remain in dispute. As to the bills for assignor Tamara Reynolds, the parties stipulated that a partial payment of $45 was made, leaving a balance of $577.84. The latter charges were denied on the basis that range of motion and muscle testing cannot be billed separately from evaluation and management, and that portion of the bill remains in dispute. As to the bills for assignor Issa Vincent, the parties stipulated that plaintiff is entitled to judgment in the amount of $643.36 (portion of the bill for March 30, 2004 in the amount of $158.92 and the entire bill for April 21, 2004 for $484.44) plus statutory interest, costs and attorney’s fees. The balance of $325.52 was denied based upon denial code 129 and remains in dispute.

Finally, for the claims brought under index number 47945/05, the parties stipulated that as to the bills for assignor Orlando Simpson, plaintiff is entitled to judgment in the amount of $158.92, plus statutory interest, costs, and attorney’s fees. The balance of $325.52 was denied based upon denial code 129 and remains in dispute. As to the bill for assignor Pierre Durisile, defendant agreed to furnish plaintiff’s counsel with proof that the claimed amount of $495 was paid, and that plaintiff is entitled to judgment in full but will not collect on that bill if defendant produces a cancelled check within 45 days of the date of the stipulation. As to the bills for assignor Rhonda Moore, the parties stipulated that a partial payment of $83.32 was made, leaving [*3]a balance of $539.52. Defendant denied those charges on the basis that range of motion and muscle testing cannot be billed separately from evaluation and management, and that portion of the bill remains in dispute.

Conclusions of Law

The workers’ compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for no-fault benefits. These are contained in a volume entitled Official New York Workers’ Compensation Medical Fee Schedule. The medical fee schedule consists of seven sections: evaluation and management, anesthesia, surgery, radiology, pathology and laboratory, medicine, and physical medicine. In addition to the medical fee schedule, the book contains separate schedules appended for psychology, chiropractic, and podiatry. Each service or procedure has a CPT (current procedural terminology) code, and the codes in each section fall in consecutive numerical ranges. At the center of this dispute are the physical medicine and medicine sections of the medical fee schedule.

The workers’ compensation regulations state that the “medical fee schedule is applicable to medical, physical therapy and occupational therapy services . . . Sections containing rates for medicine, physical medicine, anesthesia, surgery, radiology, pathology and laboratory, and evaluation and management services are included.” (12 NYCRR 329.1.) In other words, the entire volume is open to use by various medical professionals (including, for example, physician assistants and nurse practitioners), as well as physical and occupational therapists. Physical therapists are not limited to any one section. The introduction to the medical fee schedule volume explains that “[t]he schedule is divided into sections for structural purposes only. Physicians are to use the sections that contain the procedures they perform, or the services they render.” (See Official New York Workers’ Compensation Medical Fee Schedule, Introduction and General Guidelines, at 1.) Clearly, the division of medical services into different sections is not to establish who can bill for a particular service but to organize those services in a logical format so that providers can easily locate the information they need.

With this in mind, the court turns to the merits of defendant’s denials. Since the parties stipulated to plaintiff’s prima facie case, it was defendant’s burden to come forward with “competent evidentiary proof” supporting its fee schedule defenses. (See Continental Med., P.C. v Travelers Indem. Co., 11 Misc 3d 145[A], 2006 NY Slip Op 50841[U] [App Term, 1st Dept 2006]; see also Jamil M. Abraham M.D. P.C. v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U], *2 [App Term, 2d & 11th Jud Dists 2004]; Power Acupuncture P.C. v State Farm Mut. Auto. Ins. Co., 11 Misc 3d 1065[A], 2006 NY Slip Op 50393[U], *4-5 [Civ Ct, Kings County 2006].) This defendant has not done.

The court first addresses the denials that were based on the first sentence of denial code 129, to wit, “This procedure is not listed in the NY state fee schedule for this provider specialty.” On its face, this denial makes no sense: Unlike for chiropractors, podiatrists, and psychologists, there is no fee schedule specifically designated for physical therapists. Just because most of the services physical therapists provide are included in the physical medicine section does not make that section a physical therapy fee schedule.

Even if this court were to make the leap defendant does and assume that the physical medicine section is the equivalent of a physical therapist’s fee schedule, defendant has still failed [*4]to establish that its defense has any merit. Defendant argues that it was improper for plaintiff to use CPT codes contained in the medicine section of the fee schedule. This argument is based on the assumption that the medicine section is for use by physicians only. As explained above, however, the medical fee schedule—with all seven of its component sections—applies to a host of practitioners, including physical therapists. There is simply no bar to a physical therapist using a code from the medicine section where the services performed are found there instead of in the physical medicine section. That is precisely what happened here.

There are no CPT codes in the physical medicine section directly corresponding to the range of motion and muscle testing plaintiff performed. In contrast, there are CPT codes for those services in the medicine section. Specifically, code 95831 is for “[m]uscle testing, manual (separate procedure); extremity (excluding hand) or trunk, with report” (Official New York Workers’ Compensation Medical Fee Schedule at 299) while code 95851 is for “[r]ange of motion measurements and report (separate procedure); each extremity (excluding hand) or each trunk section (spine)” (at 299). Plaintiff opted to use those codes;^[FN1] defendant argues that plaintiff should have stayed within the physical medicine section and used one of two codes contained therein: code 97750 (“Physical performance test or measurement [e.g., musculoskeletal, functional capacity], with written report, each 15 minutes” [at 311]), or code 97799 (“Unlisted physical medicine/rehabilitation service or procedure,” with a relative value to be established “By Report” submitted by the provider [at 311]). Certainly, plaintiff could have used one of these codes. But since the exact services rendered by plaintiff appear in the medicine section, plaintiff chose to use those codes instead.

Defendant’s counsel has identified no law—and this court has found none—holding that a physical therapist cannot bill under the medicine section of the medical fee schedule. This court’s plain reading of the Official New York Workers’ Compensation Medical Fee Schedule and the relevant regulations lead it to conclude that a physical therapist is permitted to use CPT codes found in any section, including the medicine section. In Introna v Allstate Ins. Co. (890 F Supp 161, 165-166 [ED NY 1995], affd 99 F3d 402 [1995]), discussed by both parties herein, the court permitted the plaintiff, a chiropractor, to use codes outside of the chiropractic fee schedule—even though there exists a separate fee schedule designated exclusively for providers of chiropractic. The court need not go that far here, as physical therapists are included within the purview of the medical fee schedule which includes both the medicine and physical medicine sections. Therefore, physical therapists may use a code from the medicine [*5]section to bill for a service not specifically listed in the physical medicine section.

The court further notes that defendant’s defense that plaintiff’s use of codes was improper is belied by the fact that defendant paid for an office visit (Oct. 2, 2002) for assignor Tamara Reynolds which was billed under CPT code 99211—a code which does not appear in the physical medicine section but rather in the evaluation and management section.^[FN2] Defendant offered no explanation as to why it is willing sometimes to accept and pay a physical therapist using a code outside the physical medicine section and at other times objects to the code and rejects the bills.

The court now addresses the other charges in dispute, namely, the range of motion and muscle testing for which payment was denied on the basis that such testing cannot be billed separately from evaluation and management.^[FN3] Having carefully considered the parties’ briefs, the court determines that this defense raises an issue of fact rather than an issue of law, and defendant has not set forth any facts in admissible form to support its argument. Defendant’s counsel is not competent to opine on whether range of motion and muscle testing is generally included in an office evaluation by a physical therapist. Defendant opted not to commission a peer review and move thereupon for summary judgment, or to proceed to a live trial at which it could present witnesses and evidence. Instead, counsel proceeded only on briefs. In the absence of any testimony by a competent medical professional, this court cannot determine whether plaintiff’s charges were medically appropriate. Since it was defendant’s burden to make out its defense, the court finds that defendant has failed to carry its burden.

The court notes that even if defendant were correct that the defense turns on a question of law, defendant has not shown any basis in law to support its defense. While defendant points out that certain fees for chiropractic treatment are included in evaluation and management sessions under the chiropractic fee schedule, it identifies no such rule in the medical fee schedule which is at issue here.

For the foregoing reasons, the court finds that plaintiff is entitled to judgment for the disputed amounts. Accordingly, the court awards judgment as follows:

Under Index Number 46885/05:

a)

For assignor David Cardoza, $968.88 ($317.84 stipulated amount plus $651.04 awarded herein) plus statutory interest, costs, and attorney’s fees.

b)

For assignor Ayodele Sunmola, $1,453.32 ($476.76 stipulated amount plus $976.56 awarded herein) plus statutory interest, costs, and attorney’s fees.

Under Index Number 47943/05:

a)

For assignor Avis Brown, $484.44 ($158.92 stipulated amount plus $325.52 awarded herein) plus statutory interest, costs, and attorney’s fees.

b)

For assignor Tamara Reynolds, $577.84 plus statutory interest, costs, and attorney’s fees.

c)

For assignor Issa Vincent, $968.88 ($158.92 and $484.44 stipulated amounts plus $325.52 awarded herein) plus statutory interest, costs, and attorney’s fees.

Under Index Number 47945/05:

a)

For assignor Orlando Simpson, $484.44 ($158.92 stipulated amount plus $325.52 awarded herein) plus statutory interest, costs, and attorney’s fees.

b)

For assignor Pierre Durisile, $495 plus statutory interest, costs, and attorney’s fees.

c)

For assignor Rhonda Moore, $539.52 plus statutory interest, costs, and attorney’s fees.

Accordingly, plaintiff is awarded judgment against defendant in the amounts set forth above.

Footnotes

Footnote 1: Plaintiff did not, however, bill at the physician’s rates for its services. Rather, plaintiff asserts that it multiplied the “relative value” for the services as listed on the medicine fee schedule by the conversion factor for physical therapists. (See Introna v Allstate Ins. Co., 890 F Supp 161, 164 [ED NY 1995], affd 99 F3d 402 [1995] [“Conversion factors are provider- and procedure-specific; that is, they apply only to the category of health care provider and type of treatment for which they were established”].) Thus, the charges assessed by plaintiff were lower than what a physician would have charged for the same services. Clearly, plaintiff was not trying to obtain a windfall by billing under the medicine section; it was not billing as a doctor; it was just using the code. In any event, defendant does not object to the amounts charged, only to the codes used.

Footnote 2: In its brief, plaintiff contends that defendant also paid for an office visit under code 99211 for assignor Rhonda Moore. However, neither defendant’s denials nor the parties’ stipulated facts supports this contention.

Footnote 3: It appears that these denials are based upon the second sentence of code 129: “If reported with an evaluation and management service, this procedure is inclusive.”

Civil Court of the City of New York, Kings County

46907/2005

Sylvia G. Ash, J.

Plaintiff, a health care provider, rendered medical services to the assignors in connection with injuries sustained as a result of separate automobile accidents that occurred in September of 2003. At the time of the alleged accidents, Defendant was the first-party no-fault carrier responsible for payment of any claims properly submitted. Plaintiff brought this action to recover first-party no-fault benefits for the medical services rendered to its assignors. A trial on this matter was conducted jointly.^[FN1]. The trial commenced on February 6, 2006 and was heard on consecutive days until its conclusion on February 9, 2006. At issue as to assignor Reggie Delmar, is $484.44. At issue as to assignor Mario Rodriguez is $968.88, for a total of $1,453.32. Based on the credible evidence adduced at trial this Court makes the following findings of fact and conclusions of law.

In accordance with the applicable no-fault rules, Plaintiff submitted the required no-fault claim forms indicating the fact and amount of the loss sustained for each of its assignors, and Defendant timely denied said claims based on the fact that the alleged automobile accidents were not covered.^[FN2]. For each of its assignors Plaintiff submitted claims for the following services, Inclinometry Range of Motion procedures (code 95851), and Manual Muscle Testing procedures (code 95831). Defendant denied said claims. As a basis for its denial of each of these claims Defendant asserted two reasons. First, for the Inclinometry Range of motion procedures, Defendant contends that the “procedure is not listed in the NY state fee schedule for this provider specialty. If reported with an evaluation and management service, this procedure is [*2]inclusive.” Second, for the Manual Muscle Testing procedures, Defendant contends the “procedures referenced by the provider’s office were used more than what is normally expected per visit.” (See Joint Exhibits 1 and 2 in evidence, Defendant’s denial of claim for each assignor respectively).

In light of the parties stipulating to Plaintiff’s prima facie case, and Defendant’s timely denial of the claims submitted, the only remaining issue for this Court to determine is whether the Defendant met its burden by demonstrating that Plaintiff was not entitled to recover for the claims submitted based on the fact that the procedures were not listed in the fee schedule for the provider, and based on the fact that the procedures were used more than what is expected per visit.

To contain the cost of providing medical services to patients treated under New York’s No-Fault law, the state legislature set limits on the fees health care providers may charge patients who sustain injuries in the use or operation of a motor vehicle. The legislature controlled costs by incorporating into the no-fault scheme the fee schedules established by the Worker’s Compensation Board for industrial accidents. Worker’s Compensation fee schedules were divided into various sections, including Medicine, Physical Therapy, Anesthesia, Surgery, Radiology, and Pathology in the medical fee schedule. Each of these sections lists a variety of medical procedures and assigns to each procedure a number known as a Current Procedural Terminology Registry Code (hereinafter “CPT code”). Each procedure listed in the fee schedule is assigned a number representing its “unit value.” To determine the maximum fee a provider may charge for any given procedure, the unit value assigned to that procedure is multiplied by a dollar amount conversion factor. Conversion factors are provider specific. Hence, the conversion factors apply only t the category of health care provider and type of treatment for which they were established (see Introna v. Allstate Insurance Co., 890 F.Supp.161).

The Worker’s Compensation fee schedules are adjusted by the superintendent of the Insurance Department (see Insurance Law §5108). One adjustment made by the superintendent is for health services not set out in the schedules. When a charge for a reimbursable service has not been scheduled by the superintendent, although a fee schedule has been set for the profession of the provider, then the provider shall establish a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule subject to review by the insurer (see 11 NYCRR 68.6(a); Studin v. Allstate Insurance Co, 152 Misc 2d 221).

During trial in the instant matter, Plaintiff submitted bills indicating that, Inclinometry Range of Motion procedures (CPT code 95851), and Manual Muscle Testing procedures (CPT code 95831), were performed on the assignors. In its post-trial memorandum of law on this issue, Plaintiff demonstrated by using a chart, the precise method for calculating the charges for the expenses. Specifically, Plaintiff indicated that it did in fact locate the procedures that were performed on the assignors within the Worker’s Compensation schedule, under CPT codes, 95851 and 95831. Plaintiff using the “comparable procedures” method then billed the insurer at a rate comparable for a physical therapists rate for providing these services. Defendant failed to [*3]introduce any evidence on this issue at trial or in its post-trial memorandum of law to establish that the services rendered were in fact not scheduled services, or as the defendant stated in its denial “…not listed in the NY state fee schedule for this provider specialty.”

In addition to reviewing the record and the post-trial memoranda of the parties, the Court conducted an investigation of the fee schedule. Both of the above-referenced procedures listed in the bills submitted by the Plaintiff in this case were in fact listed in the schedule (see Worker’s Compensation Board Fee Schedule of medicine Fees, Page 32). Pursuant to the chart utilized by Plaintiff in its post-trial memorandum of law, the court is satisfied that Plaintiff billed the insurer at the appropriate physical therapist rate of the services rendered, and as such, is entitled to recovery for the expenses. Defendant offered no proof to the contrary, and as such, has failed to maintain this defense.

The Court will now address Defendant’s contention that the “procedures referenced by the provider’s office were used more than what is normally expected per visit,” (see Joint Exhibits 1 and 2 in evidence, Defendant’s denial of claim for each assignor respectively). It is the Court’s position that this defense amounts to one of lack of medical necessity. It is well settled that where Defendant’s timely denial raises the lack of medical necessity defense but fails to support same with an Independent Medical exam (hereinafter “IME”), a peer review, an IME report, or other supporting documentation that is factually sufficient and non-conclusory, this defense will fail )Amaze Med. Supply Inc. v. Allstate Ins. Co., 3 Misc 3d 43 [App Term 2d & 11th Jud Dists. 2004]. As such, Defendant failed to preserve this defense for trial. Assuming arguendo Defendant had preserved this defense for trial, Defendant failed to call any expert witnesses at trial to testify regarding this issue. Nor did Defendant attempt to introduce any documents into evidence regarding this issue. As such, Defendant’s argument fails in its entirety as there is absolutely no basis in the record upon which the Court could make the determination that the procedures referenced by the Plaintiff in its claim forms were “..more than what is normally expected per visit” (see Joint exhibits 1 and 2 in evidence, Defendant’s denial of claim for each assignor respectively).

Based on the foregoing, judgment is to be entered in favor of the Plaintiff in the amount of $1,453.32, plus statutory interest and reasonable attorney fees.

This constitutes the decision and order of this Court.

DATED:Brooklyn, NY

May 30, 2006

_____________________________

SYLVIA G. ASH

JUDGE, CIVIL COURT

Footnotes

Footnote 1: This matter was tried jointly with index numbers 46906/05, 46927/05, 46933/05, and 48354/05.

Footnote 2:The parties stipulated on the record to Plaintiff’s prima facie case and that Defendant issued timely denials. [*4]

Civil Court of the City of New York, Kings County

96268 KCV 2004

Delores J. Thomas, J.

In the instant action plaintiff, a medical supplies provider, sues to recover $2,882.85 for medical supplies provided to its assignor Barry Galleh for injuries stemming from an auto accident on March 3, 2004.

At trial, the parties stipulated to plaintiff’s prima facie case and defendant’s timely denial of claim. The parties further agreed that the only issue for trial would be defendant’s defense of lack of medical necessity. The parties also stipulated the following documents into evidence:

Plaintiff’s Exhibits:

1A – Invoice dated May 20, 2002 for $1,532.85

1B – Invoice dated April 10, 2004 for $ 1,350.00

2A – Prescription from Oleg Barshay, D.C. dated March 5, 2004

2B – Prescription from Oleg Barshay D.C. dated April 19, 2004

3 – April 13, 2004 chiropractic report from Oleg Barshay for Barry Galleh

Defendant’s Exhibits:

A1 – NF10 dated May 10, 2004

A2 – NF10 dated June 1, 2004

B1 – Peer Review dated May 5, 2004

B2 – Peer Review dated May 28, 2004

The supplies at issue were: cervical pillow, Philadelphia tracheotomy cervical collar, TLSO Dorso-lumbar surgical supply, lumbar cushion, bed board, egg crate mattress, thermophone, EMS Unit, EMS accessory Kit, EMS belt, massage and an infra-red heating lamp (Exhibit 1A & 1B).

At trial, defendant called Ronald A. Csillag, a doctor of chiropractic [“D.C.”] the person who performed the per review. Dr. Csillag was qualified without objection as an expert in the practice of chiropractics. Dr. Csillag testified that the cervical pillow prescribed for the assignor is usually prescribed for injuries which are chronic in nature. He described the assignor’s injury as being acute and opined that the pillow was not needed and that the patient could have simply been instructed to roll up a towel and use it with the same benefit. In the peer review report, Dr. Csillag indicated that the effectiveness of cervical pillows in whiplash associated disorders is inconclusive and cites as authority several publications, (i.e. Whiplash Associated Disorders, [*2]Spine 1995, 20 (85); 25-73s Clinical Evidence BMJ Publishing Group, page 232-2003).

With regards to the lumbosacral belt and cervical collar, Dr. Csillag testified and wrote in the peer review report that these supplies were unnecessary because these devices work through immobilization and this type of support is not consistent with the trend in the management of lumbar sprains. He also wrote and testified that current scientific research documents the importance of early range of motion as mobility enhances recovery (see Defendant’s Exhibit B-1, pg. 4). Dr. Csillag cited the text, Physical Medicine and Rehabilitation: State of the Art Reviews: Vol. 9(3) October 1995 as supporting authority(Id.). Dr. Csillag further testified that many of the medical supplies were unnecessary because there was no indication from the treating doctor how to use them or to what areas to apply the device. He further opined that the patient was undergoing physical therapy, chiropractic care, acupuncture, message therapy and adjunctive therapy and that the massager, infrared heating lamps, EMS Unit and associated EMS equipment represented a duplication of services.

Plaintiff did not call a witness but as indicated the report of Dr. Barshay was admitted into evidence as Plaintiff Exhibit 3. The Initial Diagnosis portion of the report indicates:

1. Traumatic cervical sprain/strain with cervical myofascitis and possible radicular involvement, complicated by C4-C5 and C5-C6 bulging disc (MRI finding).

2. Traumatic Lumbar sprain/strain with intermittent radiating sciatic neuralgia, concomitant with Lumbar myofascitis (MRI finding pending).

3. Post traumatic cervicogenic headaches.

4. Head and right knee contusion.

5. Multiple intersegmental functional dysarthroses of the cervical thoracic and lumbar vertebral motor units.

The report also list a patient management plan, to wit: “The treatment in this case was directed toward conservative chiropractic management. This consisted of specific vertebral adjustments to correct functional dysarthroses and adjunctive therapy in the form of manual intersegmental traction. To enhance recovery, manual massage therapy and acupuncture by a licensed therapist was incorporated into the treatment plan. The frequency of treatments is 2-3 times a week. The patient was also advised to wear an orthopedic lumbosacral support and cervical collar to minimize pain and prevent a re-injury. A TENS unit was given to the patient and after a two week trial was proven to be effective for pain management.”

Since the only issue for trial was whether the supplies provided to the assignor were medically necessary, defendant bore the burden of proof on this issue (A.R. Medical Art. P.C. v. State Farm Mut. Auto Ins. Co., 11 Misc 3d 1057 [A][Civ. Ct., Kings Co. 2006]; CityWide Social Work & Psychological Servs. v. Travelers Indem. Co. 3 Misc 3d 608 [Civ. Ct., Kings Co., 2004]; Elm Medical P.C. v. American Home Assurance Co., 2003 NY Slip Op. 51357 [U], 2003 WL 22471156 [Civ. Ct., Kings Co., 2003]; Fifth Ave. Pain Control Ctr. v. Allstate Ins. Co., 196 Misc 2d 801 [Civ. Ct., Queens Co., 2003]).

A no-fault insurer defending a denial of first party benefits on the ground that the billed for services or equipment/supplies were not “medically necessary” must show that the services or supplies/equipment provided were inconsistent with generally accepted medical/professional practices. The opinion of the insurer’s expert, standing alone, is insufficient to carry the insurer’s burden of proving that the services or supplies/equipment were not “medically necessary”

[*3](CityWide Social Work & Psychological Servs. v. Travelers Indem. Co. , supra at 609; Ultimate Med. Supplies v. Lancer Ins. Co., 7 Misc 3d 1002 [A] [Civ. Ct., Kings. Co. 2004]).

In United Medical Supplies v. Lancer Ins. Co., supra, plaintiff had supplied its assignor with certain medical equipment (i.e. TENS Unit, LSO, etc) pursuant to a prescription. Defendant denied payment based upon a peer review. At trial, the peer review doctor, Dr. Moshkovski, testified that based upon her experience none of the prescribed durable medical equipment was necessary. She cited no authority other than her own experience. Judge Alice Fisher Rubin found it clear that Dr. Moshkovski admitted to never having prescribed any of the subject medical equipment with the sole exception of ice packs, on no basis other than her own opinion. Thus, the court held that such an opinion was biased against the prescribing doctor so as to make the peer review a nullity and not credible.

The instant case is at opposite with the facts of United Medical Supplies v. Lancer Ins. Co. supra. Here Dr. Csillag opinion as to whether the various medical supplies were necessary was based not only upon his experience but based upon medical authority cited in the peer review reports (Defendant’s Exhibit B, page 4). Dr. Csillag wrote in his report and testified that the type of lumbar support prescribed was no longer used to manage lumar sprains because it immobilized that portion of the body and the current trend in treatment was to allow mobility because mobilization fostered recovery. Dr. Csillag also testified that the massager, infrared heating lamp, EMS unit and associated EMS equipment was a duplication of services available and provided through the physical therapy, chiropractic care, acupuncture, message therapy and adjunctive therapy that the assignor was to have begun as of the April 13, 2004 report.

Considering the testimony of Dr. Csillag at trial coupled with the contents of the peer review reports of May 5, 2004 (Defendant’s Exhibit B1) and May 28, 2004 (Defendant’s Exhibit B2) the Court finds defendant has proven its defense that the supplies were not medically necessary. The burden now shifts to plaintiff to refute defendant’s evidence.

As previously indicated, plaintiff did not call a doctor but relied upon its cross examination of Dr. Csillag and the report of Dr. Barshay. It is undisputed that a chiropractor may prescribe the supplies which are the basis of this litigation (ABC Med. Mgt. v, GEICO Gen. Ins. Co., 3 Misc 3d 181 [Civ. Ct., Queens Co., 2003]) and such may be justified in light of the patient’s overall condition (Id); herein, however, there is no evidence in the record to refute defendant’s expert witness’ testimony (cf A.R. Med. v. State Farm, supra) and to explain why the medical supplies were necessary.

In A.R. Med. v. State Farm, supra plaintiff also did not call the treating doctor; however, in that case the treating doctor had issued a Letter of Medical Necessity, which was stipulated into evidence, in which he clearly set forth the reasoning and purpose for the conduction of the NCV/EMG test that were at issue.

The April 13, 2004 report from Dr. Barshay merely sets forth what the finding of the patient’s examination were, the diagnosis, a management(treatment) plan and a prognosis. This Court has no way of knowing why these supplies were prescribed. Viewing Dr. Barshay’s report (Plaintiff’s Exhibit No. 3), the only portion that may be read as giving any indication of why the supplies were prescribed appears in the Patient Management section where Dr. Barshay indicated, “The patient was also advised to wear an orthopedic lumbosacral support and cervical collar to minimize pain and prevent a re-injury.” In light of the reasoning set forth in the peer [*4]review and the testimony at trial, plaintiff evidence in rebuttal is insufficient to prove medical necessity for the supplies.

Accordingly, judgment for defendant, the summons and complaint are dismissed.

Defendant shall serve a copy of this decision/order with Notice of Entry upon the appropriate clerk and the plaintiff within 15 days after receipt.

This constitutes the decision and order of the Court.

DATED: May 16, 2006

Brooklyn, New York

DELORES J. THOMAS

Judge Civil Court