[*1]

Civil Court of the City of New York, Kings County, March 7, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City, for defendant. Gary Tsirelman, P.C., Brooklyn, for plaintiff.

OPINION OF THE COURT

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5106 (a) of the Insurance Law and Regulations of the New York State Insurance Department (11 NYCRR 65-1.1 et seq.), for medical services rendered.

Defendant moves for an order granting summary judgment in favor of defendant based on plaintiff’s attempt to relitigate a claim which was previously dismissed by the court, and imposition of sanctions against plaintiff’s counsel for having engaged in frivolous conduct.

Plaintiff opposes the motion on the grounds that the prior action was dismissed due to plaintiff’s failure to comply with discovery demands.

The plaintiff commenced this action against the defendant to recover first-party no-fault benefits pursuant to section 5106 (a) of the Insurance Law and the regulations, in the amount of $800 for acupuncture treatment allegedly rendered to the assignor, Cindy Hall, as a result of an automobile accident which occurred on July 27, 2002. Prior to this action, the plaintiff commenced an action against defendant State Farm on behalf of the same assignor, Cindy Hall, for the same services as indicated in this action.

In the prior action, after service of the summons and complaint, issue was joined and discovery demands were made on or about January 30, 2003. On May 10, 2004, the plaintiff served a notice of trial. The defendant moved to strike the notice of trial on the grounds that discovery had not been completed. Thereafter on June 28, 2004, the defendant served a supplemental demand for discovery. On June 29, 2004, the parties appeared before the Honorable Ellen Spodek, and the attorneys entered into a stipulation which marked the case off the trial calendar, and required plaintiff to provide all discovery on or before July 29, 2004. Due to plaintiff’s failure to comply with the discovery demands as stipulated to, the defendant moved for [*2]an order to dismiss plaintiff’s complaint for failure to comply. On May 10, 2005, the parties appeared before the Honorable Robin Garson. After oral argument on the motion, the court granted defendant’s order to show cause, and dismissed the action due to plaintiff’s failure to comply with the stipulation requiring plaintiff to comply with all outstanding discovery.

Thereafter, the plaintiff commenced the action which is the subject of defendant’s motion to dismiss, pursuant to CPLR 3212. Defendant argues that the plaintiff is attempting to relitigate the same bills which were the subject of the previous lawsuit. Defendant further argues that the bills in question do not involve different dates of service than the previous bills submitted under the prior action, and therefore plaintiff is estopped from relitigating the bills in issue due to the dismissal of plaintiff’s prior action.

In opposition to defendant’s motion to dismiss, the plaintiff argues that pursuant to CPLR 205, the plaintiff can recommence the action within six months after termination. Plaintiff argues that Judge Garson’s dismissal of the prior case limited her holding to the discovery stipulation only.

After careful consideration of the moving papers, supporting documents and opposition thereto, the court finds as follows:

The plaintiff timely commenced the instant action against the defendant seeking the same relief that it sought in the prior action.

“CPLR 205. Termination of action” states as follows:

“(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

However, this court disagrees with plaintiff’s argument that it is not precluded from commencing a new action under a new index number. The complaint was dismissed after oral argument of defendant’s motion to dismiss, on the grounds that the plaintiff failed to comply with discovery demands as per a stipulation signed by both attorneys. Plaintiff’s attempt to now argue that the discovery demands were unduly cumbersome and burdensome, and therefore plaintiff was unable to comply with said demands is too late. The arguments, as conceded to by plaintiff [*3]should have been made before the judge hearing oral argument on the motion to dismiss. Furthermore, plaintiff could have moved to reargue the motion and/or appeal the court’s decision.

In Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. (Habiterra Assoc.) (5 NY3d 514, 520 [2005]), the Court of Appeals held that the “neglect to prosecute” exception in CPLR 205 (a) applies not only where the dismissal of the prior action is for “[w]ant of prosecution pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal” (internal quotation marks omitted). The plaintiff failed to comply with discovery demands, and after repeated demands for the outstanding discovery, as well as failure to comply with a stipulation, defendant moved to dismiss the complaint, which was granted by the court.

The purpose of excluding actions dismissed for neglect to prosecute from those that can be, in substance, revived by a new filing under CPLR 205 (a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road. (See, Andrea v Arnone, Hedin, Casker, Kennedy & Drake, supra; Carven Assoc. v American Home Assur. Corp., 84 NY2d 927 [1994]; Flans v Federal Ins. Co., 43 NY2d 881 [1978].)

Accordingly, defendant’s motion to dismiss is hereby granted; the complaint is dismissed in its entirety, without an imposition of sanctions.

Civil Court of the City of New York, Kings County

56900/2005

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignor in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and defendant was the no-fault insurance carrier at the time the automobile accident occurred. The amount at issue is $2,859.46. A trial on the matter was conducted by this Court on November 16, 2006. Based on the testimony and evidence adduced at trial, this Court makes the following findings of fact and conclusions of law.

The parties stipulated to the Plaintiff’s prima facie case. The only issue presented to the Court is whether or not the Defendant established the defense of lack of medical necessity. The Plaintiff presented no witnesses.

To sustain its burden of proof, the Defendant called Dr. Antoinette Perrie, D.C., L.Ac. as its chief and only witness. The parties stipulated that Dr. Perrie may testify as an expert in the field of chiropractic medicine. Dr. Perrie’s peer review report was also stipulated into evidence.

It is well settled that a health care provider’s proof of a properly completed claim form is sufficient to establish a prima facie case for recovery, thereby shifting the burden to the Defendant to show that it issued a timely denial within thirty days and/or a request for verification within ten days of receiving the claim form, (A.B. Med. Servs. PLLC v. Lumbermens Mutual Casualty Co., 4 Misc 3d 86 [App Term, 2d and 11th Jud Dists 2004]; Amaze Med. Supply Inc. V. Eagle Insurance Co., 784 NYS2d 918; Insurance Law §5106; NYCRR §65.15). It is equally well settled that where the Defendant submits a timely denial indicating the lack of medical necessity as its basis, and where said denial is supported by sufficiently detailed peer review, the burden is then shifted to the Plaintiff to establish that there was in fact a medical necessity to provide the services rendered (Choicenet Chiropractic v. Travelers Prop. Cas. Corp. (2003 NY Slip Op 50697[U], Dec. Jan. 23, 2003; NYLJ March 7, 2003 [App.Term, 2d & 11th Jud Dists.). [*2]

In the instant case, the medical supplies at issue are:

– Cervical Philadelphia Collar.

– LSO Lumbar-Sacral-Orthosis.

– Lumbar Cushion.

– Bed Board.

– Egg Create Mattress.

– Thermophore.

– Ems Unit.

– EMS Accessory Kit.

– Massager.

– Infra-Red Heating Lamp.

Defendant’s medical expert, Dr. Perrie, testified that after a review of Plaintiff’s MRI reports, medical supplies prescriptions and bills, and Plaintiff’s medical records (see pages 2 and 3 of Dr. Perrie’s peer review report dated August 14, 2004), she determined that the medical supplies prescribed to Plaintiff were not medically necessary at the time they were prescribed. Dr. Perrie testified that in her 25 years of medical practice, she had never prescribed any of the aforementioned medical supplies to a patient with Plaintiff’s complaint. Dr. Perrie further testified that given the age of the Plaintiff at the time of the accident, 75 years old, she would not have prescribed the medical supplies at issue nor would she have sent the Plaintiff to a chiropractor, she would have sent him to an orthopedic specialist instead. Dr. Perrie also questioned the timing of the prescription of the medical supplies which were prescribed to Plaintiff 2 days after the accident. Dr. Perrie stated that she would have recommended bed rest and a course of treatment for Plaintiff instead of prescribing the medical supplies at issue.

On cross examination, Dr. Perrie testified that she examined Plaintiff on August 11, 2004 and had a diagnosis of Plaintiff however, she did not include her findings in her peer review report dated August 14, 2004, because she did not remember Plaintiff or whether she had examined him. Dr. Perrie stated that the purpose of her August 11, 2004 examination of Plaintiff was to determine whether he needed further treatment. Upon further questioning, Dr. Perrie testified that she did not know whether the medical supplies prescribed were necessary or effective because she never used said supplies in her practice. The Court questions how Dr. Perrie could determine that the medical supplies in questioned were not medically necessary or effective if she had never prescribed the usage of said supplies in her 25 years of practice. Clearly Dr. Perrie has no first hand knowledge of the usefulness or effectiveness of these supplies as they relate to the injuries complained of by Plaintiff. The Court also questions Dr. Perrie’s failure to include her diagnosis of her examination of Plaintiff in her peer review report, even though said report was prepared two days after she examined the Plaintiff. The fact that Dr. Perrie stated that she did not remember the Plaintiff or remember whether she had examined him is noteworthy. [*3]

At trial, the defense that a claim was not medically necessary must be supported by sufficient factual evidence or proof and cannot simply be conclusory. Therefore, at trial, if the Defendant, as in the case at bar, provides an insufficient factual basis or medical rational for its peer review report, the Court will afford the peer review report minimal weight, and the Defendant may fail to sustain its burden of proof as was the case herein. Jacob Nir, M.D. v. Allstate Insurance Company, 7 Misc 3d 544 [NY city Civ. Ct. 2005]; A.B. Medical Services., PLLC v. New York Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A) [NY City Civ. Ct. 2005].

In the case at bar, there was no testimony establishing that the treating physician’s decision to order the medical supplies was a deviation from the established standards of medical practice and procedure as they relate to the injuries complained of. Although Dr. Perrie testified that she would not have prescribed the medical supplies at issue and that she would have ordered a different course of treatment for the Plaintiff, Dr. Perrie did not submit any factual evidence or proof that her proposed course of treatment was the established standard of medical practice and procedure as related to the injuries complained of by the Plaintiff. In fact, Dr. Perrie testified that in the 25 years of her practice she had never prescribe any of the medical supplies at issue and she could not state whether said medical supplies were necessary or effective because she had never prescribed them for usage to her patients. In Ultimate Med. Supplies v. Lancer Ins. Co., 7 Misc 3d 1002[A] [Civ.Ct., Kings. Co. 2004], Defendant’s medical Doctor testified that based on her experience, none of the medical equipment prescribed were necessary. The Court found it clear that the Doctor admitted to never having prescribed any of the subject medical equipment, thus the Court held that the Doctor’s opinion was biased against the prescribing Doctor so as to make the peer review a nullity and not credible.

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. Expo Medical Supplies, Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 NYS2d 209, 2006 WL 1341418; City Wide Social Work & Psychological Servs. v. Travelers Indem. Co., 3 Misc 3d 608 [Civ.Ct., Kings Co., 2004]; Ultimate Med Supplies v. Lancer Ins. Co., Supra.

Based on the above facts, the Court finds that Defendant failed to meet its burden of establishing lack of medical necessity. Hence, the burden never shifted back to the Plaintiff to establish that the prescribed supplies were in conformity with established medical practices and procedures.

Accordingly, judgment shall be entered in favor of the Plaintiff in the amount of

$2,859.46, plus statutory interest, costs, and attorneys fees.

This constitutes the decision and order of this Court.

[*4]DATED: January 3, 2007

___________________________________

SYLVIA G. ASH, J.C.C.

Civil Court of the City of New York, Kings County

KCV97338/04

Sylvia G. Ash, J.

Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignor in connection with injuries sustained as a result of an automobile accident. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $810.32. A trial on the matter was conducted by this Court on September 13, 2006. Based on the evidence and testimony adduced at trial, this Court makes the following findings of fact and conclusions of law.

To establish its prima facie case, Plaintiff submitted a Notice to Admit duly served on the Defendant and an Order issued by Judge Eileen N. Nadelson dated December 8, 2005 granting Plaintiff’s motion for summary judgment and dismissing Defendant’s cross-motion to dismiss. The Defendant moved for a Directed Verdict. The Court reserved decision. With regard to Judge Nadelson’s December 8, 2005 Order, the Court notes that this Order is with regard to a different Plaintiff and a different Index Number separate from the case at bar. Therefore, said Order has no bearing on this case.

With regard to Plaintiff’s Notice to Admit, the Court notes that the purpose of a Notice to Admit is to eliminate from the issues in litigation matters which will not be in dispute at trial. Desilva v. Rosenberg, 236 AD2d 508, 645 NYS2d 30 (2d Dept. 1997); Miller v. Hillman Kelly Co. 578 NYS2d 319 {177 AD2d 1036} (4th Dept. 1991). Defendant’s denial of Plaintiff’s claim is based on Plaintiff’s failure to appear for a scheduled EUO pursuant to a subpoena and lack of coverage based on fraud in that the accident was staged. In an action for first-party no-fault benefits, the Plaintiff establishes its prima facie burden by proof that it submitted a claim setting forth the facts, the amount of the loss sustained, and that payment of no-fault benefits is overdue. Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v. Eagle Ins. Co. 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The Court finds that Plaintiff established its prima [*2]facie case with the submission of its Notice to Admit.

Generally, an insured seeking to recover for a loss under an insurance policy has the burden of proving that a loss occurred and that the loss was a covered event within the terms of the policy. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Company, 7 Misc 3d 822, 795 NYS2d 843 [Civ. Ct. Kings County 2005]. Whatever the risk or loss covered, it has long been the insured’s burden to prove coverage under the policy. A.B. Medical Services, id. At 825.

The Plaintiff’s prima facie showing establishes a presumption of coverage. A.B. Medical Services, PLLC, id at 825. Once the Plaintiff makes a prima facie showing, the burden of explanation or of “going forward with the case” falls upon the defendant. Mount Sinai Hosp. v. Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 [2d Dept., 1999]. This burden, in effect, allows the 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). No-fault insurance policies cover only vehicular accidents. A deliberate collision is not a covered accident. State Farm Mutual Automobile Ins. Co. v. Laguerre, 3035 AD2d 490, 759 NYS2d 531 [2nd Dept. 2003]; Allstate Insurance Co. v.Massre, 14 AD3rd 610, 789 NYS2d 206 [2nd Dept. 2005]. When a collision is an intentional act, not an accident, there is no coverage “regardless of whether the intentional collision was motivated by fraud or malice.” Government Employees Ins. Co. v. Shaulskaya, 302 AD2nd 522, 756 NYS2d 79 [2nd Dept. 2003].

The standard of proof to be applied in the staged accident arena is preponderance of the evidence. Universal Open MRI of the Bronx, P.C.v. State Farm Mut. Auto Ins., 12 Misc 3d 1151(A) (N.Y.Civ. Ct. Kings County 2006); V.S. Medical Services, P.C., v. Allstate Insurance Company, 11 Misc 3d 334, (NY Civ. Kings County 2006); A.B. Medical Services, PLLC, supra .

If an insurer has a “founded belief” that the alleged accident was not a true accident, it can deny the claim based on 11 NYCR 65-3.8(e)(2). The insurer has the burden to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that there is no coverage. A.B. Medical Services, PLLC v. State Farm Mutual Automobile Ins. Co., 7 Misc. 3rd 11, 699 NYS2d 55 (2nd Dept.). If this threshold is reached, the burden shifts to the Plaintiff to rebut the Defendant’s case. When all 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 .

At trial Plaintiff did not present any witnesses. Defendant called as its principal and only witness Don Willsey. Mr. Willsey stated he has been a State Farm employee for 12 years and for the last 7 years he has been assigned to the Special Investigation Unit where he investigates no-fault claims that are deemed to be suspicious. Mr. Willsey gave testimony about a list of “suspicious indicators” used by State Farm to determine whether there is a basis to deny a claim which includes but is not limited to:

– Recent purchase of the insurance policy. [*3]

– Vehicle insured is an older model.

– P.O. Box is used for the insured address.

– Failure to cooperate with scheduled E.U.O

– Vehicle and/or claimants have been involved in multiple

accidents in a short period of time.

In addition to the above “suspicious indicators” Mr. Willsey stated that State Farm also relies on information obtained from the National Insurance Crime Bureau and an in-house State Farm Link Chart.. Mr Willsey stated that the following suspicious indicators were present in the case at bar:

– Driver of the insured vehicle was involved in 2

accident over a short period of time.

– Driver of insured vehicle was involved in an

accident on 11/19/05 one month before the alleged

accident in question.

– Passenger in 11/19/05 accident had 3 prior accidents

– Both vehicles involved in the alleged accident

were older model vehicles.

– An insurance claim was previously submitted to

another insurance carrier.

– Driver of insured vehicle did not appear for

scheduled E.U.O.

– Insured appeared for scheduled E.U. but was

not cooperative.

Based on the above, Mr. Willsey stated that it was his opinion that the accident was staged. However, on cross-examination, Mr. Willsey testified that he did not personally investigate the claim, he was not involved in the investigation of the claim, he was not present at the scheduled E.U.O., he did not visit the scene of the accident and he was not involved in the decision to deny the claim.

The Court determines that Defendant failed to come forward with proof in “admissible form” to establish the “fact” or the evidentiary “foundation” to buttress its belief that the injuries alleged by the assignor did not arise from an insured accident. The Defendant failed to proffer admissible evidence to rebut the presumption of coverage that attaches to the Plaintiff’s properly completed claim form. Mr. Willsey has no first hand knowledge of the events concerning the facts and investigation of the claim, and most importantly, he was not privy to the discussions and reasoning which resulted in the denial of the claim. The above “suspicious indicators” used by Defendant as a basis for denial of Plaintiff’s claim, taken together or alone does not sustain defendant’s burden by a preponderance of the evidence. At best, such “suspicious indicators” are speculative and not determinative.

Based upon the foregoing, this Court concludes that the Defendant has failed to come forward with evidence of a staged accident or that the loss giving rise to this action was [*4]intentional, and thus the burden of persuasion was never shifted to Plaintiff. Accordingly, judgment is to be entered in favor of Plaintiff in the amount of $810.32 plus statutory interest and attorney’s fees. This constitutes the Decision and Order of this Court.

DATED: December 22, 2006_________________________________

SYLVIA G. ASH, J.C.C.

Civil Court of the City of New York, Kings County

89030 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 $879.73 for medical services provided to its assignor.

Plaintiff proceeded to offer evidence via the presentation of documents and testimony of Octavio Rodriguez, a billing manager for Advanced Heathcare Solutions, L.L.C., formerly known as Medtrx, 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]).

Mr. Rodriguez testified that it was his duty to generate bills (NF-3) from information sent over a secure internet website from Andrew Carothers, M.D. P.C. Additionally his duties included preparing the envelope with the appropriate label and postage, placing the required documents necessary to process a claim into the envelope, sealing the envelope and bringing it to the post office, where he would receive a proof of mailing which was then scanned into the computer system upon his return to the billing office from the post office.

Plaintiff offered the claim form (NF-3), the signed Assignment of Benefits form (NF-AOB), proof of mailing, together with a copy of the treating doctor’s referral and the MRI narrative into evidence.

Plaintiff further strengthened its prima facie case by having Defendant’s denial form (NF-10) admitted into evidence for the limited purpose of showing that the claim was received timely by the Defendant.(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 made a motion for a directed verdict as, in his opinion, 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.

This motion was denied. The court finds that Plaintiff did in fact lay the proper [*2]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 claim.

However, the Court finds that before the issue of medical necessity is reached, the Defendant must overcome the fatal defects contained in the NF-10. Namely, the NF-10 was untimely on its face, as it denied the claim on May 2, 2005 after receiving the bill on March 14, 2005. Additionally, the NF-10 is factually insufficient, conclusory and vague in explaining the reason for denial of benefits. (See Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 779 NYS2d 715) The claim was denied for failure to establish medical necessity and the denial failed to set forth with sufficient particularity the factual basis and medical rationale for its denial based on lack of medical necessity. (See A.B. Med. Servs. P.L.L.C. v. GEICO Cas. Ins. Co., 2006 NY Slip Op 26133)

To overcome these defects, Defendant called Ms. Michelle Cusano, a Litigation Team Leader for the Defendant, Progressive Insurance Company. She testified that her duties were to review claim files in preparation for litigation. It was her testimony that the NF-10 was timely since a verification request was sent thereby tolling the deadline for the denial. It was her contention that the verification was answered on April 12, 2005 and therefore the NF-10, sent on May 2, 2005, was timely.

She further testified that the NF-10 was not factually insufficient, conclusory or vague in explaining the reason for the denial since it was accompanied by a peer review report which set forth the reason for denial with sufficient particularity and medical rationale. It was her testimony that since she saw the NF-10 and the peer review report in the file and under the general office procedure of mailing, it would have been placed in the claims file contemporaneously with their mailing. Therefore, she deduced that it was mailed together.

Ms. Cusano testified that although she was not the person who was responsible to mail the verification request and it was not even her duty to ensure that the request was sent, she knew that it was sent because she had previously worked in the processing department in the late 1990’s and at that time it was her responsibility to generate the verification requests. She described the procedure she would take in detail; attempting to establish the mailing of the [*3]verification request.

On cross examination, Ms. Cusano stated that the person in the processing department would print three copies of a verification request. One copy was sent to the mail room to be mailed to the person whom they needed verification from; the second copy was placed in a 30-day box, which would be used to monitor whether or not an answer to the request was received; and the third copy was placed in the claim file. It was that third copy, coupled with the fact that the verification request was answered, which led Ms. Cusano to the conclusion that the verification request was properly mailed.

When asked of whom the verification was requested, Ms. Cusano told the court that it was Dr. Kleyman. Plaintiff maintained that if three copies are printed; one copy to Dr. Kleyman, the second copy placed in the 30-day box, and the third copy in the claims file, then the Plaintiff, Andrew Carothers M.D. P.C. was not mailed a verification request. Only then did Ms. Cusano state that sometimes a forth copy is printed.

Plaintiff then asked Ms. Cusano if at the time of her employment in the processing department and now relating to the general office practice, whether she would fill in all the relevent boxes on the NF-10; she answered, “yes.” When asked if a verification request was sent and received, would those boxes be filled in on the NF-10; again she answered, “yes.” When shown that boxes No.28 (Date final verification requested) & #

29 (Date final verification received) on the NF-10 were blank she responded that the boxes were obviously left blank in error.

Within thirty days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 NYCRR 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 NYCRR 65.15 [d] [1]). Since the Court finds that the mailing of the verification request had not been proven, the 30-day period was not extended and therefore the denial was untimely on its face. Thus, Plaintiff demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period. (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3])

Moreover, even if Defendant timely issued the denial within 30 days of its receipt of the claim a proper denial of claim must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664) The denial of claim form issued by Defendant in this action, even if timely, was fatally defective in that it omitted items of requested information, and thus was incomplete (see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664; Nyack Hosp. v Metro. Prop. & Cas. Ins. Co., 16 AD3d 564).

Additionally, Ms. Cusano’s testimony relating to the general office procedure regarding mailing was vague and conclusory, lacking knowledge of the procedure designed to ensure that items are properly addressed and mailed. (See Hospital for Joint Diseases v. Nationwide Mutual Ins. Co., 284 AD2d 374; Residential Holding Corp. v. Scottsdale Ins. Co., 286A.D. 2d 679) The [*4]portion of her testimony relating to the mailing of the NF-10 strengthened Plaintiff’s prima facie case, that the bills were actually mailed, but did nothing to establish her knowledge of the actual mailing procedures. She admitted that it was not part of her duty to oversee the mailing procedures or to ensure that a peer review report was sent together with the NF-10. Furthermore, she stated that at the time that she worked in the processing department, it was not the general office procedure to mail the peer review reports together with the NF-10s.

Moreover, Defendant’s witness Ms. Cusano could not establish that the peer review report was actually sent to Plaintiff and the NF-10 did not state that a peer review report was attached, rather it merely stated that “Based on the results of an independent peer review, medical justification and/or necessity cannot be established for the services billed. Therefore, your request for reimbursement is denied.”

Although Ms. Cusano described the general office procedure in mailing the verification request and the peer review report, she based her knowledge of the actual mailing of those documents solely on the fact that they were contained in the claim file that she reviewed for litigation purposes. This was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 [2001]). Nor did her testimony state that it was her duty to ensure compliance with said office procedures or that she had actual knowledge that said office procedures were complied with (see Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137A, 800 NYS2d 344, 2005 NY Slip Op 50254U [App Term, 2d & 11th Jud Dists]). Inasmuch as Defendant herein failed to establish by competent proof that the verification request was mailed and that the peer review report was mailed together with the NF-10, they did not make the requisite showing to establish that a proper denial was sent. (See Gribenko v. Allstate Ins. Co., 2005 NY Slip Op 52201U; Accessible and Advance Medical P.C. v. Allstate Ins. Co., 2006 NY Slip Op 51599U)

It is apparent to the Court that there are numerous conflicting decisions relating to proper testimony regarding the standard general office procedure of mailing. It is this Courts opinion that for the sake of judicial economy and for the sake of dispensing with the constant mailing issues arising in these cases, the Insurance Companies should produce the proper witnesses from the mailing room, who could testify that it is their duty to ensure that items are properly addressed and mailed or it is their duty to ensure compliance with said general office procedures or that they have actual knowledge that the mailing procedure, as part of the standard general office procedure, is followed.

Although the Court allowed Defendant to call Dr. Hadhoud, the author of the peer review report upon which the denial was based, to testify regarding the necessity of the services rendered, the issue of medical necessity need not have been reached.

The Court finds that, as a matter of law, even if Defendant’s doctor would persuasively testify that the medical service provided lacked medical necessity, this testimony would not cure the legal insufficiency of the proffered untimely denial.

Therefore, judgment should be entered for the plaintiff in the amount of $879.73, plus [*5]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:December 21, 2006

____________________________

Lila P. Gold, J.C.C.

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.