Civil Court of the City of New York, Kings County

97383/04

Eileen N. Nadelson, J.

Plaintiff instituted this action for first party benefits pursuant to New York’s No-Fault Insurance Law. Plaintiff allegedly provided its assignor with psychological services. Its bill was received by Defendant insurer on August 8, 2003, as evidenced by the statements appearing on its Denial of Claim Form.

According to Defendant, on the same day it received Plaintiff’s bill it mailed Plaintiff a verification request. This notice states:

We are writing to advise there will be a delay with regard to the disposition of

your Psychological claim.

Processing of this claim will be delayed pending our receipt of the results of an

independent medical examination scheduled to verify:

the injury is casually related to the motor vehicle accident [*2]

On September 10, 2003, Defendant avers that it mailed a second notice that states:

Pleased be advised we cannot consider payment due to the following:

We are delaying your bill pending the results of the causality IME

Plaintiff denies ever receiving these notices, and Defendant has not provided a legally sufficient proof of mailing said notices to Plaintiff.

On January 13, 2004, more than 30-days after receipt of the claim, Defendant issued its denial of claim, basing its denial of benefits on Plaintiff’s “failure to provide requested verification and examination under oath to support the rendition and necessity of services and to establish your entitlement to benefits.”

In its response to the instant motion, Defendant asserts that Plaintiff has engaged in a consistent pattern of fraud with respect to billing for psychological services under the No-Fault statute. In support of this contention, Defendant provides a form it sent to the Frauds Bureau of the New York State Insurance Department and the affidavits of various assignors in other claims who indicate that they did not receive the services billed for from Plaintiff. The court notes that no such affidavit is provided for the instant assignor.

11 NYCRR sec. 65-3.3 states that an insurer must either pay or deny a claim for first party benefits under the No-Fault law within 30 days of receipt of a properly completed claim. This 30-day time period may be extended if the insurer requests verification of the claim, and until such verification is received the 30-day period is tolled. See generally Westchester County Medical Center v. New York Central Mut. Fire Ins. Co., 262 AD2d 553, 692 N.Y.S. 2d 665 (2d Dept. 1999)

I n order to meet the mandates of the regulations, the insurer must demonstrate that the request for verification was properly mailed to the claimant. See Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 AD2d 374, 726 N.Y.S. 2d 443 (2d Dept. 2001). In the instant case, Plaintiff denies ever receiving such requests and Defendant has not refuted that allegation with an affidavit of a person with personal knowledge of the mailing or of the insurer’s mailing procedures. Allstate Social Work and Psychological Svcs PLLC v. GEICO General Insurance Co., 2005 NY Slip Op. 50024(U), 2005 WL 107046 (NY City Civ. Ct). Therefore, for this reason alone the court may conclude that the 30-day period prescribed under 11 NYCRR sec. 65-3.3 was not properly tolled.

Furthermore, the wording of the notices as written above do not constitute proper verification requests. The notices, as submitted in the papers to the court, merely state that the processing of the claim will be delayed pending the results of the verification, but nowhere has Plaintiff been specifically asked to verify the claim. Consequently, these notices do not constitute proper verification requests that would toll the 30-day period pursuant to 11 NYCRR sec. 65-3.8. [*3]

However, even though Defendant failed to adhere to statutory time requirements, the court must still address Defendant’s argument that Plaintiff’s claims are not covered because of fraud. The lateness of a denial or the absence of a required denial does not prohibit the insurer from raising the defense of lack coverage based upon the fact or founded belief that the alleged injury did not arise out of an insured incident. A.M. Medical Services, P.C. v. AIU Insurance Company, 4 Misc 3d 1027A, 2004 NY Slip Op. 5108(U) (Nassau 2004). The issue of fraud is not intended to escape the notice of the court simply because of a late denial. Valley Psychological, P.C. v. Liberty Mutual Insurance Co., 195 Misc 2d 540, 760 N.Y.S. 2d 627 (Albany 2002). However, although the affidavits submitted indicate serious problems with Plaintiff’s billing practices and services, Defendant has failed to demonstrate any fraud with respect to the instant claim.

All of the documents appearing in the papers refer to different claims with different assignors, and the court cannot rule based on the adage that “where there’s smoke, there’s fire.” The burden is on the Defendant to provide the court with adequate evidence of potential fraud with respect to the parties before it in order for the court to substantiate its decision. Therefore, the court cannot conclude that there was any problem with respect to the claim at bar.

Based on the foregoing, the court is forced to conclude that Plaintiff is entitled to summary judgment in the amount of $1200.92 plus statutory interest, attorney’s fees and costs.

Dated: February 10, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court of the City of New York, Kings County

055906/04

Loren Baily-Schiffman, J.

Plaintiff moves for summary judgment on claims for first party No-Fault benefits.^[FN1] Plaintiff, a provider of health services and the assignee of its patient’s claims for payment, seeks $1,559.33 plus statutory interest and attorneys fees for three claims for acupuncture services. For the reasons stated below, Plaintiff’s motion is granted.

In order to establish a prima facie case on behalf of a provider, plaintiff must submit proof that the claim was mailed and received and that defendant did not pay or deny the claim within thirty (30) days. Mary Immaculate Hosp. v. Allstate, 5 AD3d 742 (2d Dept 2004); Liberty Queens Medical P.C. v. Liberty Mutual, 2002 W.L. 31108069 (App. Term 2nd & 11th Dists., 2002). Pursuant to Insurance Law §5101 et seq. and the regulations promulgated [*2]thereunder, an insurer must either pay or deny a claim for No-Fault benefits within thirty (30) days of the date that the proof of claim is received. Insurance Law §5106; 11 NYCRR 65.15 (g)(3). The thirty (30) day period may be extended by an insurer’s request for verification of the claim within ten (10) business days for claims submitted prior to April 5, 2002 and fifteen (15) business days for subsequent claims. 11 NYCRR 65.15 (d) & (e). An insurer who fails to deny or pay a claim within the thirty (30) day period is precluded from raising any defenses to the claim, other than lack of coverage or fraud. Presbyterian Hospital v. Maryland Casualty Co., 90 NY2d 274 (1997); Presbyterian Hospital v. Aetna Casualty & Surety Co., 233 AD2d 433 (2d Dept., 1996); Central Hospital v. Chubb, 90 NY2d 195 (1997); Mt. Sinai v. Triboro Coach, 263 AD2d 11 (2d Dept., 1999). An insurer’s failure to raise objections within the ten (10) or (15) day verification period constitutes a waiver of defenses based thereon. Id.

A party moving for summary judgment must show by admissible proof that there are no material issues of fact in controversy and that they are entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York Univ. Medical Center, 64 NY2d 851 (1985). Once that showing is made, the burden shifts to the opponent of summary judgment to come forward with proof in admissible form that there are material issues of fact in controversy that require a trial. Id.

Plaintiff asserts that it is entitled to summary judgment because defendant failed to pay any of the subject claims within thirty (30) days of receipt and denied the claims on an impermissible basis: failure of the assignor to appear for IME’s. Defendant opposes the motion on the following bases: 1) that plaintiff’s motion papers fail to prove the medical necessity of the services provided; 2) that the assignment of benefits is not authenticated; 3) the bills attached to the motion are not in admissible form and, as such, may not be considered in support of plaintiff’s motion; and 4) the claims were timely denied.

DISCUSSION

The case law in this Judicial District is clear that plaintiff need not prove medical necessity, authenticate the assignment of benefits or present its bills in admissible form in order to make out its prima facie case for summary judgment. Plaintiff need only submit proof that the claim was mailed and received and that defendant did not pay or deny the claim within thirty (30) days. Mary Immaculate Hosp. v. Allstate, 5 AD3d 742 (2d Dept 2004); Liberty Queens Medical P.C. v. Liberty Mutual, 2002 W.L. 31108069 (App. Term 2nd & 11th Dists., 2002). Accordingly, the only issues which need be decided by the Court are the timeliness of defendant’s denials of the three claims that are the subject of this action and, if the Court finds any of the denials to be timely, whether failure to appear for IME’s is a proper basis on which to deny a claim.

Defendant responded to plaintiff’s claims dated June 26, 2002, July 23, 2002 and August 19, 2002 with one denial dated September 9, 2002. In that denial, defendant indicates that the June 26, 2002 claim was received on July 29, 2002; the July 23, 2002 claim was received on [*3]August 21, 2002; and the August 19, 2002 claim was received on August 26, 2002. Each of plaintiff’s claims is accompanied by a postal log stamped by the Postal Service indicating that the claim was mailed on the day it is dated. The explanation for why each claim was received by defendant weeks after it was mailed comes from the Affirmation of Gary Coore, a Litigation Supervisor employed by defendant. Mr. Coore states that defendant received the June 26, 2002 claim on July 1, 2002 and on July 18, 2002 sent plaintiff a letter indicating that defendant was delaying investigation of the claim pending receipt of certain identified information. Defendant states that this letter is a request for verification that was timely requested within the fifteen (15) business days permitted by NYCRR §65-3.5. According to Mr. Coore, the requested information was received on July 29, 2002. Independent medical examinations (IMEs) were then scheduled for the assignor, Mason Cory. Mr. Cory allegedly failed to appear for six (6) IMEs scheduled for August 1, 2002 and then re-scheduled for August 15, 2002. A denial was issued on September 9, 2002 on the basis that the assignor failed to appear for IMEs. Defendant asserts that this denial was timely.

The Affidavit of Gary Coore states that the defendant received plaintiff’s July 23, 2002 claim on July 26, 2002 and on July 31, 2002 sent a delay letter to plaintiff requesting certain specified information. Mr. Coore also states that this claim was denied on September 9, 2002 for the assignor’s failure to appear at the IMEs scheduled for August 1, 2002 and then re-scheduled for August 15, 2002. Mr. Coore states that plaintiff’s August 19, 2002 claim was received on August 21, 2002 and denied on September 9, 2002 for failure to appear at the aforementioned IMEs.

Timeliness of June 26, 2002 Claim

This claim was received by defendant on July 1, 2002 accordingly to the admission of Mr. Coore contained in his Affidavit in opposition to the instant motion. Mr. Coore states that a request for verification was sent on July 18, 2002, but no proof of mailing of this document is provided to permit the Court to determine whether the request was timely sent. Mr. Coore goes on to admit that responses to the request for verification were received on July 29, 2002. The claim was denied on September 9, 2002 on several bases: 1) that all No-Fault benefits for injured person were denied effective May 19, 2002; and 2) that the injured person failed to appear for IME’s on August 1, 2002 and August 15, 2002.

Pursuant to 11 NYCRR §65.15(c)(3), after receipt of requested verification information, an insurer has thirty (30) days within which to pay or deny the subject claim. Here, defendant has admitted that it received the requested verification information on July 29, 2002, yet the claim was not denied until September 9, 2002. The actions of the insurer in scheduling IME’s after receipt of the requested information did not extend its time to pay or deny the claim Choicenet Chiropractic, PC v. Elco Administrative Services Co., 2002 NY Slip Op. 40382 (Civil Court, Queens Co.), nor is the failure to appear for IME’s a permissible basis upon which to deny a claim. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co. 2001 NY [*4]Slip Op. 40655, (App. Term, 2d & 11th Jud. Dists, 2001); Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., 2001 NY Slip Op. 40654 (App. Term, 2d & 11th Jud. Dists., 2001). Accordingly, the July 26, 2002 claim was not timely denied.

Timeliness of July 23, 2002 Claim

The July 23, 2002 claim was received by the insurer on July 31, 2002 and denied on September 9, 2002. Annexed to Mr. Coore’s Affidavit is a document he refers to as a “pend letter” which by its terms requests that certain information be provided. However, there is no indication in the papers in opposition to the instant motion that this document was mailed to plaintiff, on what date or by what means it was mailed or if any response to the letter was received. Mr. Coore only states that IME’s were scheduled, the assignor failed to appear for the IME’s and a “timely denial” was issued on September 9, 2002.

As indicated above, the assignor’s failure to appear for IME’s is not a proper basis to deny a claim. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra; Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra. Moreover, as defendant has failed to prove that a request for verification was mailed to plaintiff, if the “pend letter” can be considered a request for verification, the thirty (30) day time period within which to deny a claim was never extended. The claim was received on July 31, 2002 and was not paid or denied within thirty (30) days thereafter. Accordingly, the denial of this claim is untimely.

Timeliness of August 19, 2002 Claim

This claim was received by the insurer on August 21, 2002. Defendant does not allege in its opposition papers that a request for verification of this claim was sent to plaintiff. Mr. Coore’s Affidavit states that IME’s were scheduled to be held prior to the receipt of this claim. The assignor failed to appear at these IME’s and

the insurer denied the claim on September 9, 2002 on the basis of the failure to appear at these previously scheduled IME’s. The insurer’s actions in response to this claim are analogous to situations where an insurer relies on a previous denial to deny a current claim. The Appellate Division, 1st Department, stated the following in A&S Medical, PC v. Allstate Ins. Co., 2005 NY Slip Op. 00505 (1 Dept., 2005)

When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.

Quoting Atlantis Medical, PC v. Liberty Mutual Ins. Co., 2002 NY Slip Op. 40043 (Dist Ct, Nassau Co,3d Dist, Great Neck Part). The statute and the regulations, similarly, do not permit the insurer after receipt of a claim to

simply sit mute” and deny the claim based upon an earlier failure to appear at IME’s. While this [*5]denial is timely, the basis for the denial is unavailable to defendant. Urban Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra; Millenium Medical Diagnostics, PC v. Liberty Mutual Insurance Co., supra.

For all the foregoing reasons, summary judgment is granted to plaintiff in the sum of $1559.33 plus statutory interest and attorneys to be computed by the Clerk of the Court.

This constitutes the Decision and Order of the Court.

Dated:February 9, 2005

__________________________

HON. LOREN BAILY-SCHIFFMAN

Footnotes

Footnote 1:Plaintiff has presented motion papers that are generic in nature and are more like a brief on No-Fault law than support for specific relief related to the claims and denials annexed as exhibits to the motion papers. The Court looks with disfavor on this practice which requires the Court to leaf through the exhibits to divine the factual basis for the relief sought in the motion.

Civil Court of the City of New York, Kings County

307729/03

Delores J. Thomas, J.

Plaintiff moves for an order granting it summary judgment. The motion is granted.

Plaintiff, Ocean Diagnostic Imaging P.C. As Assignee of Mohammed Rahman (“Ocean Diagnostic”), commenced this action to recover the sum of $1,758.40 for medical services it provided to the assignor, Mohammed Rahman (“Rahman”), and its attorney’s fees [Summons And Complaint Plaintiff’s Exhibit A].

Defendant, American Protection Insurance Company (“American Protection”), opposes the motion in its entirety. Its counsel maintains that Ocean Diagnostic’s bills were properly denied [Affirmation In Opposition of Lawrence Chiarappo, Esq. dated May 28, 2004 Paragraph Five]. Defendant’s denial was based upon the Physician Peer Review conducted by Dr. Daniel G. Kassan, M.D. on March 2, 2003 [Defendant’s Exhibit B].

Dr. Kassan’s report stated the following: [*2]

There was no evidence of significant injury on physical examination of cervical spine or right knee that would support the need for MRI of cervical spine or right knee. The injuries described could be adequately evaluated with physical examination and close monitoring of progress.

Dr. Kassan concluded that the two MRIs “were inappropriate and without necessity.” He recommended that payment should not be made to the health care provider.

On March 13, 2003, American Protection denied the submitted claim based upon Dr. Kassan’s peer review.

Defendant’s denial stated that:

. . . there was no necessity for the MRI. Therefore, your bill is denied in full. Denial of Claim Form dated March 13, 2003 [Defendant’s Exhibit C].

Defendant sent the denial to plaintiff on March 13, 2003 [Affidavit of Kimberly Palmer dated May 26, 2004 Paragraph Seven].

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, the health care provider establishes a prima facie entitlement to summary judgment by proof it submitted the statutory claim form setting forth the fact and the amount of loss sustained and that the payment of no-fault benefits was overdue (Star Medical Services P.C. v. Eagle Insurance Company, 2004 NY Slip Op. 24482, 2004 WL 2779347 [App Term, 2nd & 11th Jud Dists, December 1, 2004]).

The insurer must submit proof in admissible form to rebut plaintiff’s prima facie showing to oppose a motion for summary judgment (A.B. Medical Services, PLLC v. Lumbermens Mutual Casualty Company, 4 Misc 3d 86, [App Term, 2nd & 11th Jud Dists, 2004]).

An insurer may timely deny a claim on the ground that the medical treatment was medically unnecessary based upon a peer review. The peer review must set forth a sufficient factual foundation and medical rationale for the rejection of the claim (Triboro Chiropractic and Acupuncture P.L.L.C. v. Electric Insurance Company, 2 Misc3rd 135(A) [App Term, 2nd & 11th Jud Dists, 2004]). The peer review must be affirmed (A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, 3 Misc 3d 136(A), 2004 WL 1302031 [App Term, 2nd & 11th Jud Dists, 2004]) or sworn to (A.B. Medical Services, PLLC v. Lumbermens Mutual Casualty Company, supra). If the report is not affirmed or sworn to, the court may grant summary judgment to the plaintiff (A.B. Medical Services, PLLC v. New York Central Mutual Fire Insurance Company, supra).

Notwithstanding defendant’s counsel’s representation [Chiarappo Affirmation Paragraph Nine], Dr. Kassan’s peer review was not affirmed. Nor did Dr. Kassan swear to the truth of the representations made in his report.

Since the peer review was not sworn to or affirmed, it is not admissible. Therefore, American Protection may not utilize Dr. Kassan’s report to oppose plaintiff’s application for summary relief.

In light of the fact that defendant has not offered any other basis for denying movant’s [*3]application, plaintiff’s motion for summary judgment is granted in its entirety.

The clerk is directed to enter judgment in favor of the plaintiff and against the defendant in the sum of $1,758.40 with statutory interest measured from August 5, 2003, along with statutory attorney’s fees, and applicable costs and disbursements.

This constitutes the decision and order of the court.

Dated:Brooklyn, New York

February 9, 2005

DELORES J. THOMAS

Judge Civil Court

Civil Court, Kings County

91337/04

Eileen N. Nadelson, J.

Petitioner, a medical provider, brought this action to vacate a Master Arbitration award rendered in favor of Respondent insurer. The initial arbitration award was affirmed by the Master, both arbitrators concluding that Petitioner lacked standing to institute this claim for first party benefits under New York’s No-Fault Insurance Law.

At the initial hearing, the arbitrator sua sponte raised the issue of Petitioner’s standing to receive no-fault benefits. Petitioner, at the time in question, was a professional corporation authorized under New York law. The sole owner of the corporation was a medical doctor, and the services for which this action was commenced were acupuncture treatments performed by a licensed acupuncturist under the auspices of the professional corporation. The physician who owned the corporation was neither licensed nor certified to perform acupuncture, and no evidenced was adduced to indicate whether the acupuncturist was an employee of the corporation or an independent contractor.

11 NYCRR sec. 63-3.16(a)(12) states that:

A provider of health care services is not eligible for reimbursement under

section 5102(a)(1) of the Insurance Law if the provider fails to meet any [*2]

applicable New York State or local licensing requirement necessary to

perform such services in New York or meet any applicable licensing

requirement necessary to perform such service in any other state in which

such service is performed.

Under New York law, an acupuncturist may only be employed by or contracted to provide licensed services to the public through certain entities, including a licensed or certified acupuncturist or partnership of licensed (or certified) acupuncturists; a professional corporation authorized to practice acupuncture; a limited liability company or partnership lawfully authorized to practice acupuncture; a hospital, nursing home, clinic or HMO. See Advisory Letter from the State Education Department, October 8, 2002.

In order to provide acupuncture services, a professional corporation must be owned, organized and operated by persons who are licensed or certified to practice acupuncture. See generally, New York Business Corporation Law sec. 1503. In the case at bar, although Petitioner’s owner was a licensed physician, he was neither licensed nor certified to practice acupuncture.

Cases in New York have held that proper licensing of a medical provider is a condition precedent to payment of benefits under the No-Fault Law. Valley Physical Medicine and Rehabilitation, P.C. v. New York Central Mutual Insurance Comany, 193 Misc 2d 675, 753 N.Y.S. 2d 289 (2d Dept. 2002). Consequently, if Petitioner was not licensed to perform acupuncture, it may not recover first party No Fault benefits for such services.

In affirming the initial arbitration award, the Master stated that the award was based on the fact that Petitioner, although a licensed physician, presented no proof that such license encompassed acupuncture services. Such evidence was also not presented in the current petition. Therefore, because Petitioner was not licensed nor certified to perform acupuncture, it cannot bill for such services. 11 NYCRR sec. 65-3.16(a)(12).

In its papers, Petitioner focused on the circumstances that permit a court to vacate an arbitration award and specified the minium requirements that a health care provider must supply in order to prevail on a claim for No-Fault benefits. Petitioner completely failed to address the standing issue upon which the arbitration award was based. However, a health care provider’s standing based on licensing requirements is always an appropriate field of inquiry. See generally CKC Chiropractic v. Republic Western Insurance Co., 5 Misc 3d 492, 784 N.Y.S. 2d 350 (Kings County 2004).

Based on the foregoing, the court affirms the award of the arbitrator and Master Arbitrator. The court finds it unnecessary, based on this decision, to address the grounds that may be used to vacate such awards.

This constitutes the decision and order of the court.

[*3]Dated: February 8, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court, Kings County

070407/04

Ellen M. Spodek, J.

defendant State Farm Insurance Company moves for an order severing the action brought by plaintiff into separate actions on behalf of the individual assignors.

In this action, plaintiff seeks to recover first party No-Fault benefits with interest and statutory attorneys fees from defendant for alleged medical services provided to its assignors.

Defendant’s motion to sever is hereby denied. The Appellate Division has held that when “claims arise out of a uniform contract of insurance and involves interpretation of the same no-fault provisions of the Insurance Law” severance need not be granted. The Court found that even if the claims involved separate accidents and individuals they do not lose their character as a series of transactions because they occur at different places and times and if they involve a common question of law, as the case at bar does, joinder is proper. ( see Hempstead General Hosp. v Liberty Mut. Ins., 134 AD2d 569 [2d Dept. 1987]). Defendant failed to submit any [*2]documents to demonstrate that the causes of action do not share common questions of law.

Moreover, the instant case involves one plaintiff and one defendant and CPLR 601 permits, and even encourages, joinder with as many claims as one plaintiff might have against one defendant, regardless of whether such claims are related.

Here, this Court finds that joinder of only four assignees does not impose an undue burden on defendant nor would it create confusion for the fact-finder. (see Hempstead, supra )

Lastly, the granting or denial of severance is left to the discretion of the Court. (Sporn v Hudson Transit Lines, 265 App.Div. 360; St. James Realty Corp. Level Realty Corp., 155 N.YS.2d 44; Biltmore Knitwear Corporation v Chalfin, 25 NYS2d 947). Accordingly, defendant’s motion is denied.The foregoing constitutes the decision and order of this court.

E N T E R,

Dated: January 20, 2005 __________________

Hon. Ellen M. Spodek

Judge, Civil Court

Civil Court of the City of New York, Kings County

070376/04

Eileen N. Nadelson, J.

Plaintiff, a medical provider, instituted this action to recover first party no-fault benefits from Defendant insurer. Plaintiff moved for summary judgment, alleging that Defendant neither paid nor denied the claim within the statutorily mandated thirty-day period after receipt of the claims. Ins. Law sec. 5106; Regulations sec. 65-3.8.

Defendant, in opposition, claimed that the denials were timely on their face; however, Plaintiff argued that Defendant failed to provide legally sufficient proof of mailing the subject denials within the thirty-day period.

Defendant’s proof of mailing consists of an affidavit from one of its employees who states that it is part of her regular duties and responsibilities to handle claims filed for no-fault benefits. The affidavit goes on to state that she reviewed the records of the instant claim and based on that review, has determined that the denial was mailed on the date appearing on the denial form. She finally states that, “as per the regular course of business of this office, the bill was timely denied .” [*2]

The question before the court, one that has caused much confusion and litigation, is the information that must appear on an affidavit of mailing to meet the requirements of New York’s no-fault law to evidence a proper proof of mailing.

Generally, proof of proper mailing gives rise to a presumption that the item was received by the addressee. This presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Residential Holding Corp. v. Scottsdale Insurance Co., 286 A.D> 2d 679, 729 NYS2d 776 (2d Dept. 2001).

In A & S Medical, P.C. v. Allstate Insurance Co., 2002 NY Slip Op. 50121(U) (1st Dept. 2002), the Plaintiff established proof of mailing the claim by an affidavit of one of its employees who actually placed the application in an envelop and then mailed the envelop at the post office herself by return receipt certified mail. This Plaintiff further presented the postal receipts, which the court concluded constituted proof of mailing the claim. In this case, the court further adduced that the defendant’s affidavit of an employee who reviewed the file and concluded that the claim was not received was inadequate to rebut the presumption of the plaintiff’s mailing of the claim.

Proof of proper mailing requires evidence of actual mailing or a standard office practice or procedure designed to ensure that the items are properly addressed and received. Affidavits that make no reference to the specifics of the office mailing practice or procedure, which merely aver that the bills were mailed within the statutory time period, are insufficient to establish proof of actual mailing. Comprehensive Medical v. Lumbermens Mutual Insurance Co., 4 Misc 3d 133(A) (NY Sup. App. Term 2004).

Consequently, in order to meet its burden of proving that denials were mailed within the thirty-day period, an insurer must attach an affidavit of an employee who personally mailed the denial or, conversely, the affidavit of an employee with personal knowledge of the office’s mailing practices and procedures, who describes those practices or procedures in detail, indicating how he or she acquired the knowledge of such practices or procedures, and whose personal review of the file indicates that those practices or procedures were followed with respect to the claim under review.

In the instant case, Defendant has failed to meet its burden of proving that the denials were mailed within the thirty-day period because the affidavit of its employee with respect to the mailing is legally deficient. The employee states that she is familiar with the office practices and procedures, but neglects to specify the details of those procedures. The affiant fails to state how she became familiar with these procedures, and her “personal knowledge’ consists merely of a review of the files, without stating at what point in the claim process she reviewed those files or the basis for her belief that regular office procedures were followed. Without sufficient substantiation that the denials were in fact mailed on the date claimed, the court must find for Plaintiff. [*3]

Summary judgment is awarded to Plaintiff. The clerk of the court is ordered to enter judgment in favor of Plaintiff in the amount of $1,181.63, plus statutory interest, costs, and attorney fees.

Dated: January 17, 2005

__________________________

EILEEN N. NADELSON, J.C.C.

Civil Court of the City of New York, Kings County

55621/03

Delores J. Thomas, J.

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

Plaintiff moves for an order granting it summary judgment.

Plaintiff commenced this action to recover for medical services it provided to five of its assignors pursuant to the no-fault endorsement contained in an automobile policy issued by defendant.

Plaintiff, as to each of its assignors, submits a copy of an assignment of benefits signed by each assignor and a copy of a verification of treatment form for each assignor. With respect to three of the assignors,^[FN1] plaintiff submits a copy of the denial of claim forms issued by [*2]defendant, which on their face indicate receipt by the defendant, and indicate a failure to deny the claim within thirty (30) days of receipt. With respect to the other two assignors,^[FN2] plaintiff submits an affidavit from Fenelly Olivares, in which he claims that he personally mailed the no-fault claims on January 10, 2003, as indicated in the annexed mailing receipt. In addition, plaintiff submits an affidavit from Shiva Hakimian, in which she claims that she is responsible for handling the claims of said two assignors, and that defendant failed to either pay or deny the claims of the two assignors within thirty (30) days of receipt.

A plaintiff establishes a prima facie case for recovery of no-fault benefits by submitting a statutory verification of treatment form showing the amount of the loss (A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 2004 WL 1301910 [AT 2nd & 11th Jud Dists.]; Choicenet Chiropractic, P.C. v. Allstate Insurance Co., 2003 WL 1904296 [AT 2nd & 11th Jud. Dists.]).

In this case, by submitting copies of the assignments, proofs of claim, copies of defendant’s denial of claim forms as proof of mailing of the claims for three of its assignors, and submitting proof of mailing as to the claims for the other two assignors, plaintiff has presented a prima facie case for summary judgment. Defendant’s denial of claim forms which indicate the date the claims were received is sufficient proof of mailing (A.B. Medical Services v. New York Central Mutual Fire Insurance Co., 3 Misc 3d 136 [A], NYLJ, June 2, 2004, p. 27, col. 4, 2004 WL 1302031 [AT 2nd & 11th Jud Dists.]).

In this case, plaintiff seeks reimbursement for services provided to its assignors from October 22, 2002 through January 6, 2003. Plaintiff sent completed verification of treatment forms for said services to defendant in December 2002 and January 2003. With respect to three assignors, the denial of claim forms sent by defendant, after it received the verification of treatment forms, were sent more than thirty (30) days after receipt of the claims. With respect to two of the assignors, there is no indication that any denial of claim forms were sent after receipt of the verification of treatment forms.

In defense of this action, defendant does not rely on the denial of claim forms sent after receipt of the verification of treatment forms, but rather relies on denial of claim forms sent prior to receipt of the subject verification of treatment forms. Prior to receiving the subject verification of treatment forms, defendant sent denial of claim forms with respect to each assignor, indicating that it was the defendant’s position, based on an independent medical examination, that no further medical treatment was necessary for the injuries suffered by each of the assignors. In addition, each denial of claim form provided a cutoff date after which defendant would not pay for medical services. Annexed to each denial of claim form was a report from a doctor which supported the claim that further medical treatment was unnecessary. These types of denials are called blanket disclaimers. It is defendant’s position that once it sent a blanket disclaimer any treatment provided after the cutoff date contained in the denial form would be covered by the blanket disclaimer; so that even if the denial forms sent after receipt of the verification forms were sent more than thirty (30) days after receipt of the claim, they would be timely, based on the earlier blanket disclaimer.

In A & S Medical, P.C. v. Allstate Insurance Co., 196 Misc 2d 322 (AT 1st Dept. 2003), lv to appeal granted NY App. Div. 2004 Lexis 9836 (1st Dept. July 5, 2004), the court, in [*3]passing on blanket disclaimers, stated as follows:

“Although defendant argues otherwise, its belated denial of plaintiff’s no-fault claim is not properly ‘deemed’ timely on the basis of its earlier blanket disclaimer of responsibility to reimburse plaintiff’s assignor for further orthopedic treatment, a disclaimer which predated plaintiff’s rendition of the services billed for and the filing of plaintiff’s claim form. ‘When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate[s] the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured.’

The contrary construction urged by defendant effectively authorizing the sub rosa denial of properly filed no-fault claims is inconsistent with the plain language of Insurance Law § 5106(a) and, if adopted, would serve to vitiate the so-called 30-day rule embodied in 11 NYCRR 65.15(g)(3) and to undermine a core objective of the no-fault scheme ‘to provide a tightly timed process of claim, disputation and payment.” (at p. 323-324, citations omitted).

The distinction between A & S Medical and this case is that in A & S Medical the blanket disclaimer was served on the assignor, while in this case, defendant claims that the blanket disclaimers were served on plaintiff, the medical provider. Phillip Asciolla, an employee of defendant, claims that he handles claims for no-fault benefits filed with defendant, and that he has reviewed defendant’s records which indicate that the annexed copies of the blanket disclaimer were mailed to plaintiff with respect to each assignor.

Plaintiff, citing several cases, claims that the affidavit submitted by defendant’s employee is not sufficient to prove that the blanket disclaimers were mailed. In the cases cited by plaintiff, the plaintiffs in those cases submitted evidence of the defendant’s failure to deny the claim within thirty (30) days of receipt, so that the defendant’s employee’s claim that he checked the defendant’s records and that the denials had been timely mailed was insufficient. In this case, while plaintiff has shown that defendant’s denials, generated by its verification of treatment forms, were not timely mailed, plaintiff fails to submit an affidavit from a person with knowledge, that plaintiff never received the blanket disclaimers prior to plaintiff’s treating its assignors. Under these circumstances, defendant’s proof of mailing of the blanket disclaimer forms, in the absence of a sworn denial of receipt by plaintiff, is sufficient.

As noted above, the only distinction between this case and A & S Medical is that in A & S Medical the blanket disclaimer was served on the assignor while in this case the blanket disclaimers were served on plaintiff medical supplier. This distinction need not lead to a different result, since the Appellate Term in A & S Medical took a strong position that the no-fault statutory scheme requires the insurer to deny each claim it receives in a timely fashion, and cannot rely on a blanket disclaimer served prior to receipt of the verification of treatment form. As the Appellate Term noted, permitting such a blanket disclaimer would vitiate the thirty-day rule within which a claim must be denied. [*4]

In addition, even if a previously served blanket disclaimer could serve as a timely denial for subsequent medical treatment, the blanket disclaimers herein cannot be used by defendant as a defense. The blanket disclaimers herein are incomplete. They do not list the name of the medical provider in item 23, and unlike the denials served after receipt of the verification of treatment forms, which list the plaintiff medical provider as the applicant for benefits, the blanket disclaimers list the assignors as the applicants for benefits. An incomplete blanket disclaimer, which makes no mention of the medical provider, cannot be considered a timely denial of a claim for treatment which was subsequently provided, even if the blanket disclaimers were served on the medical provider. At the very least, if defendant wishes to rely on a blanket disclaimer, it must be properly completed. Thus, defendant’s belated denials of plaintiff’s no-fault claims cannot be deemed timely denied based on the previously served, but improperly filled out, blanket disclaimers.

Defendant cites Hospital for Joint Diseases v. Allstate Insurance Co., 5 AD3d 441 (2nd Dept. 2004), as standing for the proposition that a blanket disclaimer can act as a timely denial of subsequent treatment. In that case, the plaintiff claimed that it was entitled to summary judgment on two no-fault claims it sent on March 6, 2002, since the defendant had failed to either pay or deny the claims within thirty (30) days of receipt. The defendant submitted evidence that it had previously notified the plaintiff’s assignor that it had terminated her no-fault benefits based on an independent medical examination. In addition, defendant showed that it had previously issued timely denials for identical claims previously submitted by the plaintiff, and that the plaintiff had repeatedly resubmitted the identical claims, until, one time, the defendant failed to issue a timely denial. The court found that the defendant’s denial was timely, since it had previously timely denied the identical claim. This case is quite different from Hospital for Joint Diseases, since defendant herein never issued a timely denial.

A no-fault claim is overdue if it is not paid or denied within thirty (30) days of receipt. Insurance Law § 5106(a); 11 NYCRR § 65.15(g)(1)(i). Since the blanket disclaimers are not valid, and since defendant either failed to pay or deny the claims with thirty (30) days of receipt, or never issued a denial, plaintiff’s no-fault claim is overdue.

Where an insurance company fails to deny a no-fault claim within thirty (30) days of receipt, it is precluded from raising the defense of lack of medical necessity (Amaze Medical Supply, Inc. v. Allstate Insurance Co., 2 Misc 3d 134[A], 2004 WL 758248 [AT 2nd & 11th Jud. Dists.]).

Defendant further argues that the fees sought by plaintiff exceed the Workers’ Compensation fee schedule. Since defendant failed to deny the claims within thirty (30) days of receipt, it is precluded from raising this defense (Mingmen Acupuncture Services, P.C. v. Liberty Mutual Insurance Co., 2002 WL 1362202 [AT 9th & 10th Jud Dists.]; Park Health Center v. Prudential Property & Casualty Insurance Co., 2001 WL 1803364 (AT 2nd 11th Jud Dists.]).

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

Interest on overdue claims accrues at 2% interest per month. Insurance Law

§5106(a); 11 NYCRR § 65.15(h)(1).

In accordance with 11 NYCRR § 65.17(b)(6)(v), once a court action is commenced, a party may recover attorneys’ fees in the sum of 20% of the amount of no-fault benefits awarded, including the interest awarded thereon, to a maximum of $850.00 per claim (Smithtown General Hospital v. State Farm Mutual Auto Insurance Co., 207 AD2d 338 [2nd Dept. 1994]).

The clerk is directed to enter judgment against defendant on the first cause of action [*5]in the sum of $1360.00, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against defendant on the second cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the third cause of action in the sum of $727.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the fourth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the fifth cause of action in the sum of $812.15, with 2% interest per month, from January 23, 2003. The clerk is directed to enter judgment against the defendant on the sixth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against defendant on the seventh cause of action in the sum of $850.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against defendant on the eight cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

The clerk is directed to enter judgment against the defendant on the ninth cause of action in the sum of $85.00, with 2% interest per month, from February 10, 2003. The clerk is directed to enter judgment against the defendant on the tenth cause of action for attorneys’ fees in the sum of 20% of the above amount, including the interest awarded thereon, to a maximum of $850.00.

This constitutes the decision and order of the court.

Dated:Brooklyn, New York ________________________________

January 4, 2005 DELORES J. THOMAS

Judge, Civil Court

Footnotes

Footnote 1: Zoya Abayeva, Geraldine Aybar and Altagarcia Abayea.

Footnote 2: Alekandra Borukhova and Jeanne Rivkin.

[*1]

Civil Court of the City of New York, Kings County, December 21, 2004

APPEARANCES OF COUNSEL

Baker, Barshay & Neuwirth, Hauppauge (Robert J. Baker of counsel), for plaintiff. Carmen Callahan & Ingham, Farmingdale (Kerry-Ann Davidson of counsel), for defendant.

{**6 Misc 3d at 888} OPINION OF THE COURT

Ellen Gesmer, J.

This case presents squarely the question of whether an assignment {**6 Misc 3d at 889}is an essential element of a claim for first-party no-fault benefits, and whether the failure to include it is a waivable defect. For the reasons set forth below, the court holds that an assignment is an essential element of a claim for no-fault benefits, which cannot be waived.

In this action, the verified complaint alleges that Melvin Reyes was injured in a car accident on May 12, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under No-Fault Insurance Law § 5101 et seq. Plaintiff brings this action, as the assignee of Mr. Reyes, to recover $3,080 in first-party no-fault benefits. Plaintiff moves for summary judgment, and defendant opposes it, because of plaintiff’s failure to establish that it submitted an assignment of benefits to defendant with its notice of claim. Plaintiff contends that submission of an assignment of benefits is not part of its prima facie case and that any objections to the assignment are waived if not asserted in the defendant’s denial. Here, defendant [*2]concededly did not object in its denial to plaintiff’s failure to include an assignment in its proof of claim.

In making its argument, plaintiff relies on New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (8 AD3d 640 [2d Dept 2004]). That case would appear to support plaintiff’s position. There, the Appellate Division held that the insurance company’s failure to prove that it had mailed timely requests for verification of the assignments upon which the respondents’ claims were based prevented it from objecting to the claims “on the basis of lack of proof of the assignments.” (At 641; see also New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2d Dept 2004].) Recently, citing New York Hosp. Med. Ctr., the Appellate Term for the 2d and 11th Judicial Districts reversed a trial court which had dismissed a no-fault case because the plaintiff had submitted an assignment which did not designate an assignee (Diagnostic Rehab. Med. Serv. PC v Travelers Indem. Co., 6 Misc 3d 68 [App Term, 2d & 11th Jud Dists 2004]). Specifically, the Appellate Term held (at 69) that the defendant insurer, “having failed to seek additional verification or allege any deficiency in the assignment in its denial of claim form, had waived any defenses with respect thereto.”

In its decision, the Appellate Term also overruled its own prior {**6 Misc 3d at 890}decision in A.B. Med. Servs. PLLC v Progressive Ins. (2003 NY Slip Op 50790[U], *1 [App Term, 2d & 11th Jud Dists 2003]), in which it had affirmed the denial of a plaintiff medical provider’s motion for summary judgment on the ground that the “purported assignment” did not bear the name of any assignee. Strikingly however, the Appellate Term did not disown its decision in A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists 2004]). In that case, decided three months after New York Hosp. Med. Ctr. (8 AD3d 640 [2004]), the Appellate Term reversed the grant of a plaintiff’s motion for summary judgment finding, inter alia, that one of the plaintiffs had failed to prove its prima facie case because the record did not contain an assignment. The Appellate Term reached that result even though the decision does not indicate that the defendant asked for verification of the assignment or issued a timely denial on that basis. This court concludes that A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists 2004]) is still good law, both because the Appellate Term did not overrule it and because, for the reasons set forth below, it is consistent with governing precedent. Applying that decision to this case, this court must deny plaintiff’s motion for summary judgment since it failed to prove that it included an assignment in its notice of claim.

The continued validity of A.B. Med. Servs. (4 Misc 3d 141[A], 2004 NY Slip Op 51031[U]), notwithstanding the Appellate Division decision in New York Hosp. Med. Ctr. (8 AD3d 640 [2004]), is entirely consistent with the policies and principles stated in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). In that case, the Court of Appeals held that a defense of noncoverage cannot be waived in a no-fault case, even if the insurer fails to raise it in its denial. That decision extended [*3]to the no-fault context the Court’s holdings in Zappone v Home Ins. Co. (55 NY2d 131 [1982]) and Schiff Assoc. v Flack (51 NY2d 692 [1980]) that the defense of noncoverage could not be waived in cases concerning liability policies and professional indemnity insurance. The underlying theory of all of these cases is that if the insurer is not liable to the alleged insured under the contract of insurance, then contractual liability cannot be created by waiver (Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The Court of Appeals explained that, if for example, the insurance company had no contract of insurance at all with the alleged insured, or had no contract with its insured concerning the vehicle in the accident, then “there simply is no insurance at all and, therefore, no obligation to disclaim or deny.” (Zappone v Home Ins. Co., 55 NY2d 131, 139 [1982].){**6 Misc 3d at 891}

An assignment essentially extends the rights created by contract from the assignor to the assignee, so the assignee can sue on behalf of its assignor only if it has a valid assignment. Accordingly, the insurance company has no contractual obligation to the assignee in the absence of a valid assignment. Consequently, if the absence of an assignment could be waived by the insurance company’s failure to raise it, then contractual liability between the insurance company and the assured’s assignee would be created by waiver. But that should not be permitted, just as the courts do not permit a contractual obligation between the insurance company and its alleged insured to be created by waiver (Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]; Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). Therefore, when no assignment is tendered, the insurance company has no contractual obligation to the assignee, and its objections to the absence of the assignment cannot be waived.

In this case, there simply was no assignment. Plaintiff did not attach one to its moving papers or to its reply papers. Therefore, plaintiff has failed to establish that defendant has any contractual obligation to it, and the court cannot grant summary judgment in its favor.

Civil Court, Kings County

313390-03

Alice Fisher Rubin, J.

This no-fault action was brought to recover judgment in the amount of $2,517.00, and statutory legal fees and interest from May 2, 2000, for prescribed orthopedic devices provided by Ultimate Medical Supplies to Cedric Wright. Plaintiff provided bills to Defendant, Lancer Insurance Company (Lancer). Defendant denied payment claiming the defense of medical necessity. Plaintiff commenced this action against Lancer by service of a summons and complaint.

A trial was held before this Court on June 8, 2004.and June 9, 2004. At the conclusion of the trial, both parties were advised that the Court would accept post trial memorandums of law to be submitted on or before June 25, 2004. Defendant submitted a timely memorandum; plaintiff did not submit.

Plaintiff’s case consisted of the testimony of Peter Tiflinsky, principal of plaintiff Ultimate Medical Supplies, Inc., and the admission of five exhibits, including three bills, a medical supply invoice, a delivery receipt for a TENS Unit and the comprehensive report of Dr. Opam, together with his letter of May 23, 2001.

Defendant’s case consisted of the testimony of Dr. Francine Moshkovski (the doctor who performed the independent medical examinations and the peer review) and four exhibits, including a delay letter, an NF-10 denial, a subpoena with an affidavit of service upon the claimant/assigner, and a copy of Dr. Moshkovski’ s peer review report.

Defendant’s post-trial memorandum listed five issues involved in this matter. Those issues include: Receipt of Dr. Moshkovski ‘s testimony; the failure of the Plaintiff to prove a valid assignment; the failure of the Plaintiff to prove any evidence as to the necessity for a LSO; the contested evidence as to the medical necessity; and the evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

The Court will address each of the issues in the order listed.

1. Dr. Francine Moshkovski’s Testimony

It is well established law that one testifying as an expert “should be possessed of [*2]the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.” Marrot v Ward, 48 NY2d 455, 459, 423 NYS2d 645. Dr. Moshkovski testified that she was a graduate of a medical school, received post-graduate training in the field of physical medicine and rehabilitation, and was qualified as a diplomat of the American Board of Physiatrists. She further testified that her medical speciality dealt with the treatment of muscular-skeletal and neuro injuries and conditions, and the relief of pain. She has practiced and taught in her field for 17 years. Furthermore, after stating her qualifications, the witness testified without objection.

It is also established law that the Trial Judge need not “certify” the witness as an expert. People v Gordon, 202 AD2d 166, 608 NYS2d 192, lv den 83 NY 911. It is the Court’s opinion that Dr. Moshkovski met the standards to qualify as an expert.

2. The Plaintiff’s Prima Facie Case

Defendant, in its closing statement and in its post-trial memorandum, argues that Plaintiff has not established a prima facie case. Two essential elements in maintaining an action seeking the recovery of first party no-fault benefits are proof of assignment and proof that the claim was mailed to the insurer. Advanced Medical Rehabilitation P.C. v Travelers Property Casualty Insurance Co. N.Y.L.J. March 25, 2004, p. 19, col. 3. The second element was stipulated to and is not an issue. Despite Defendant’s contention that there was no assignment, there was a concession made by Defendant during the testimony of Plaintiff witness, Peter Tiflinsky. Plaintiff had offered a delivery receipt into evidence (Plaintiff No.1). Mr. Tiflinsky testified that he witnessed the assignor, Cedric Wright, sign the document. Plaintiff moved the document into evidence. Defendant objected. Additional questions were asked of the witness. At the conclusion of the round of questions, Plaintiff offered the document into evidence again, stating: “I offer this document into evidence once again in so far as the witness testified that he observed the assignee signing this document.” (P. 16). Defendant asked “for what purpose?”: Plaintiff responded, “verifying his signature on the assignment we are standing to sue here today.” Defendant’s responded: “I have no problem with it going in as an assignment, your Honor.” At the time of trial, the Court ruled Plaintiff had met the requirements of establishing its prima facie case. Upon review of the transcript and the evidence, the Court stands by its ruling.

3. The failure of the Plaintiff to prove any evidence as to the necessity for a LSO .

It was stipulated that all bills were sent timely and a verification request was made timely and a narrative from the referring physician and a letter of medical necessity for a custom fitted LSO was submitted timely. The denials were based on the peer review ‘s lack of medical necessity.

Dr. Moshkovski testified that she can find no support in the medical reports furnished to her by the Plaintiff for a prescription for a Lumbosacaral support. However, Plaintiff’s evidence #

5, the report of Metropolitan Multi-Special Medical Center P.C., dated February 20.2001, p. 4. Indicates that a cervical pillow, lumbar support, massager, car seat and ice packs were prescribed. [*3]

Defendant’s post-trial memorandum indicates that Dr. Moshkovski’s Peer Review Evaluation indicated that the prescription was signed by Dr. Schwartz. There is no testimony from Dr. Moshkovski, (but there was mention of Dr. Schwartz in her Peer Review Report which was in evidence), or anyone else to determine who Dr. Schwartz is. Nonetheless, there is no question in the Court’s mind that Dr. Opam had recommended such a device and indicated in his report that such a device had been prescribed.

4. The contested evidence as to the medical necessity.

Dr. Moshkovski testified that based on her experience none of the prescribed durable medical equipment are necessary. She cited to no authority other than her own experience. More telling as to her bias was her response to Plaintiff’s question on cross-examination where she was asked: “I’ m asking you, isn’t it a fact that you took the tests that were in the report that worked for you and included them in your peer review and left out the ones that went against you?” Yes or no? (p. 75, L. 14-17)

Dr. Moshkovski’s response: “I’ll say yes” . (P. 15 L. 18)

It is clear to the Court that Dr. Moshkovski admitted to never prescribing any of the medical equipment, with the sole exception of ice packs, on no basis other than her own opinion. Such an opinion is biased against the prescribing doctor as to make the peer review a nullity and not credible.

5. The evidentiary effect of the failure of the Claimant/assignor to appear subject to subpoena.

Defendant argues in his post-trial memorandum that the Plaintiff stands in the shoes of the assignor, Cedric Wright. Plaintiff’s only benefits are based upon the rights that have been assigned to him by Mr. Wright. It is Defendant’s contention that since there is no proof of an assignment; therefore the Plaintiff has no standing to sue and the case should be dismissed. The court has ruled, both at trial and in this decision, that Plaintiff has met the burden of establishing a prima facie case. Therefore, the motion to dismiss is denied.

A subpoena was served upon Mr. Wright, which was ignored. Defendant, therefore, wishes the court to consider Mr. Wright a missing witness and infer that the testimony of Mr. Wright would not support the contentions of Plaintiff. The burden is on the party who seeks the benefit of the inference to establish that there is a witness who can give material evidence, Fremont v Metropolitan S. R. Co., 83 App Div 414, 82 NYS 307. Also, the party seeking the charge has the burden to notify the court as soon as practicable, and to establish that there is an uncalled witness believed to have knowledge on a material issue; that the witness can be expected to testify favorably to the opposing party, and that such party has not called the witness, Papa v New York, 194 AD 527, 598 NYS2d 558. Other than moving the subpoena into evidence without objection, there was no offer of proof to satisfy the requirement of notification to the Court about this witness. The other requirements of a missing witness charge, had this been a jury trial were also unsatisfied since there was no discussion on the record, other than the offering of the subpoena into evidence and the arguments made in the post-trial memorandum. Therefore, the Court declines to infer negative testimony would be elicited had Mr. Wright appeared. [*4]

Based on all of the foregoing items, the Court hereby directs the clerk of the court to enter judgement in favor of the Plaintiff and against Defendant, in the amount of $2,517.00, plus statutory legal fees and interest from May 2, 2000.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

December 17, 2004

_______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court

Civil Court of the City of New York, Kings County

115723/04

Bruce Newborough, P.C., Brooklyn, New York for the plaintiff; McDonell & Adels, P.C. (Lisa E. Hechler), Garden City, New York for the defendant

Ellen Gesmer, J.

The verified complaint alleges that Arthur Scott was injured in a car accident on March 20, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under the No-Fault Insurance Law §5101 et seq. Plaintiff brings this action, as the assignee of Mr. Scott, to recover $1,340.30 in first party no-fault benefits. Defendant moves for summary judgment on the grounds that plaintiff engaged in a pattern of fraudulent billing practices and has failed to verify its billing for the instant claim. Plaintiff failed to oppose defendant’s motion. Therefore the Court will decide this matter solely on defendant’s moving papers and annexed documentation.

Defendant maintains that it is issued a timely denial because it received the bill at issue on June 16, 2003, issued a request for additional verification on June 27, 2003 and, after [*2]receiving no response from plaintiff, ultimately denied plaintiff’s claim on December 1, 2003. However, defendant’s moving papers do not include any proof of mailing of its request for verification (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). The affidavit of Ms. Dawn Madalone an Investigator employed by defendant’s Special Investigations Unit does not establish mailing because Ms. Madalone does not state in her affidavit that she has personal knowledge that the requests were sent to plaintiff (Presbyterian Hosp. v Maryland Casualty Ins. Co., 226 AD2d 613 [2d Dept 1996]). Nor does the Madalone affidavit create a presumption of mailing because it does not describe the standard operating procedures plaintiff uses to ensure that its verification requests are mailed (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). Consequently, having failed to establish that it mailed the requests for verification, defendant has failed to show that its denial of plaintiff’s claim was timely. The fraud which defendant is claiming as a defense to payment of this claim is fraud by the plaintiff medical provider. Although an untimely denial permits a defendant to assert a defense of fraud by the assignor, a claim of fraud by the assignee must be asserted in a timely denial (Melbourne Medical, P.C. v Utica Mutual Ins. Co., 4 Misc 3d 92 [2d Dept 2004]). Consequently, defendant’s motion for summary judgment must be denied.

Even if this claim were not barred by the late denial, defendant would not be entitled to summary judgment in its favor. In order to satisfy its burden on a motion for summary judgment, defendant “must show that the accident was a deliberate event or a part of an insurance fraud scheme.” (A.M. Med., P.C. v NY Cent. Mut. Ins. Co., 2004 NY Slip Op 50298U, *2 [Civil Ct, Queens County 2004]). This is higher than the standard when the defendant is merely opposing a plaintiff’s motion for summary judgment based on a fraud defense; in that event, defendant must submit “facts, in admissible form and with the requisite particularity, to create triable issues of fraud” (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004), such as an affidavit by a person with personal knowledge of the facts at issue (Melbourne Medical, P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004].

In support of its contention, defendant submits the transcript of the Examination Under Oath (EUO) of Dr. Patricia Garel, in which Dr. Garel states that she never provided psychological services to any of plaintiff’s patients although plaintiff submitted claims to defendant seeking reimbursement for psychological services allegedly rendered by her. However, the transcript of Dr. Garel’s EUO is not executed in accordance with CPLR 3116. CPLR 3116[a] provides that the transcript must be submitted to the witness so that the witness can read it and make any changes to it that are desired. If the witness then signs the transcript under oath, the transcript may be utilized. “Unsigned depositions do not suffice as proof requisite to defeat a motion for summary judgment.” (Pathmark Graphics Inc. v J.M. Fields, Inc., 53 AD2d 531 [1st Dept 1976]; see also Lo Cicero v Frisian, 150 AD2d 761 [2d Dept 1989]). This principle applies equally to an examination under oath taken by an insurance company. (Krupp v Aetna Life & Casualty Co., 103 AD2d 252, 263 [2d Dept 1984]).

In order to use a transcript that is not signed by the witness, if the witness is a nonparty, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the [*3]party proffering the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed (see Siegel, 1993 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3116:1, 1997-1998 Pocket Part, at 94). A party seeking to use an unsigned deposition transcript must show that the witness was given the opportunity that CPLR 3116 (a) provides to the witness to make sure that the transcript is correct in form and substance. This procedure is necessary to insure that the proponent of the transcript is not relying on an inaccurate transcript (Palumbo v Innovative Communications Concepts, 175 Misc 2d 156, 157-158 [Sup Ct, NY 1997]). In this case, defendant annexes a copy of a letter dated October 21, 2003 addressed to Dr. Garel’s attorneys requesting that she sign the transcript and have it notarized, but defendant does not proffer an affidavit of a person with personal knowledge that this letter was in fact mailed. Consequently, defendant has not shown either that the transcript was properly executed or that the opportunity that CPLR 3116[a] affords the depondent for execution has passed. Therefore, the Court cannot consider the EUO transcript of Dr. Garel because it does not constitute evidence in admissible form under CPLR 3212 (See Reilly v Newireen Assocs., 303 AD2d 214, 220 n.2 [1st Dept 2003]).

In further support of its fraud claim, defendant again relies on the affidavit of Ms. Madalone who states in her affidavit that defendant properly denied plaintiff’s claim based on overwhelming indica of fraud. Ms. Madalone states that her knowledge of the case comes from:

1. Her “review of the file which she maintained, ” 2. Her investigation into plaintiff’s billing practices; 3. A New York State Insurance Department press release concerning the indictment of Dr. Michael Ferrato, Ph.D of Ferrato Psychological Services, P.C. (FPS) 4. Claim forms submitted to defendant by PSG and FPS for various unidentified patients other than plaintiff’s assignor; 5. The transcripts of EUOs of Darcy Greenidge and Allan Gaskin; and 6. The Examination Before Trial (EBT) transcripts of Henry Johnson and Aida Ellis The Court cannot rely on any conclusions reached by Ms. Madalone which are based on unidentified documents in defendant’s investigative file since those documents are not before the court in admissible form (see CPLR 3212[b]; Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). The Court also cannot rely on the press release concerning the indictment of Dr. Ferrato since it is not in admissible form. Even if it were in admissible form, Ms. Madalone has failed to establish the relevancy of the indictment to this case since Dr. Ferrato did not treat the assignor in this case. Defendant also annexes to its moving papers reams of redacted documents which the Madalone affidavit contends proves that FPS submitted bills to defendant for the exact same services as those claimed by PSG for the same patient just days apart from the date when PSG claimed to have rendered services. However, since the name of the policy holder, the patient’s name, gender and address are redacted from the documents, there is no way for the Court to make an independent determination as to whether the documents in fact support defendant’s contention. More importantly, the documents are not in admissible form since they are not adequately identified (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004). Therefore, the Court cannot rely [*4]on Ms. Madalone’s conclusion that these documents prove fraud.

Finally, like the transcript of the EUO of Dr. Garel, the transcripts of the EUOs and EBTs of Ms. Greenidge, Mr. Gaskin, Mr. Johnson and Ms. Ellis cannot be considered on a motion for summary judgment, since they are not executed and the defendant has failed to show that the deponents were given an opportunity to execute the transcripts.

Consequently, all of the documents relied on by Ms. Madalone cannot be considered by this Court in support of defendant’s motion for summary judgment because the documents are not in admissible form. Therefore, defendant failed to satisfy its burden to submit facts in admissible form and with the requisite particularity to establish fraud. Accordingly, defendant’s motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.

Dated: December 8, 2004

ELLEN GESMER

Judge, Civil Court