CV-735802/17

Attorney for plaintiff
Damin J. Toell, Esq,.
Law Offices of Damin J. Toell P.C.
P.O BOX 245112
Brooklyn, New York 11224

Attorney for defendant
Desiree Ortiz Esq.,
Robyn M. Brilliant P.C.
333 West 39th Street, Suite 400
New York, New York 10018

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

In an action by a provider to recover assigned first-party no-fault benefits for breach of contract, defendant moves for an order dismissing the action pursuant to CPLR 3211(10) for failure to join a necessary party, or in the alternative, an order extending defendant’s time to interpose an answer pursuant to CPLR 2004.

Defendant claims that the assignor, Mikhail Soldatov, while operating his own vehicle, was involved in a motor vehicle incident with another vehicle, resulting in injuries which were treated by the plaintiff.

Defendant moves to dismiss the complaint based on plaintiff’s failure to join a necessary party, which defendant argues is the insurance carrier for Soldatov’s vehicle. Defendant contends that it never issued a liability insurance policy to Mr. Soldatov, but that it was the insurer of the [*2]other vehicle involved in the accident. Defendant argues that since Mr. Soldatov was not an occupant of the vehicle insured by defendant, defendant has no duty to provide Mr. Soldatov no fault coverage.

In opposition, plaintiff contends that the Court lacks subject matter jurisdiction to hear the defense that an insurance carrier other than the defendant is responsible for plaintiff’s claims. The defense, as per plaintiff, involves the priority of payment of insurance carriers, which must be resolved by arbitration, pursuant to 11 NYCRR 65-4.11(a)(6), which states “Any controversy between insurers involving the responsibility or obligation to pay first part benefits is not a coverage questions and must be submitted to mandatory arbitration.”

Plaintiff’s claim that the court lacks jurisdiction is unavailing. The priority of payment among insurance carries, applies to an applicant who is an “eligible injured person” under applicable insurance policies including defendant’s policy.

In the case at bar, plaintiff’s counsel submits no evidence that Mr. Soldatov’s vehicle was insured by defendant, or that Mr. Soldatov is otherwise entitled to receive no fault coverage from the defendant. Absent evidence that Soldatov is an “eligible injured person” under defendant’s policy, the priority of payment analysis under 11 NYCRR 65-4.11(a)(6) is not triggered or applicable herein.

In contrast, defendant provides an affidavit which unequivocally states it never insured the vehicle owned and operated by Mr. Soldatov. Defendant contends that the insurer of the Soldatov vehicle at the time of the incident, not the defendant, is the carrier responsible for providing Soldatov no-fault benefit. (See 11 NYCRR 65.1(d)(c), a person not an occupant of the vehicle defendant insured at the time of the incident, is not an “eligible injured person” under defendant’s policy).

A party may move for a judgment dismissing the action on the ground that the court should not proceed in the absence of a person who should be a party. (see CPLR 3211). In the instant action, defendant has submitted evidence that it did not insure the Soldatov vehicle.

However, plaintiff argues that defendant’s claim that another carrier insured the vehicle occupied by Soldatov at the time of the incident must be rejected, as the claim is based on the an uncertified, police report, which is an inadmissible hearsay. Absent the police report, plaintiff argues, defendant would have no basis to conclude that Soldatov occupied his own vehicle at the time of the incident.

While a police report is inadmissible unless the report constitutes a hearsay exception. (see Memenza v Cole, 131 AD3d 1020), a report based on the officer’s personal observations in carrying out her duties, is admissible as a business record (CPLR 4518 (a); Wynn v Motor Veh Acc Indem Corp 137 AD3d 779 [2d Dept 2016]).

In the case at bar, the police officer was under a business duty to obtain the names of the owners and occupants of the vehicles involved in the incident, which we can infer were based on the police officer’s observation. However, as the police report annexed to defendant’s motion is not uncertified, it is inadmissible. (See CPLR 4518 (c) a police report may be admitted as proof of the facts recorded therein only if it is certified).

Although the police report may not be admitted into evidence (CPLR 4518 (c)), the Court notes that plaintiff has not presented any evidence to dispute the truthfulness of the officer’s presumed observation that Soldatov was the operator of his own vehicle at the time of the incident. (See Wynn v Motor Veh Acc Indem Corp 137 AD3d 779; Clear Water Psychological Servs. PC v American Tr. Ins. 54 Misc 3d 915). Accordingly, defendant’s motion to interpose an [*3]answer is granted.

In its reply, defendant further argues that plaintiff did not provide it with written notification of the incident. Under 11 NYCRR 65-1.1(d), coverage is precluded absent written notification of the accident by the assignor or her representative within 30 days after the incident.

However, defendant’s motion is based on plaintiff’s failure to sue the proper party and failure to join a necessary party, and not on violation of the requisite 30-day rule. Accordingly, the court will not consider the above argument, as same is raised in defendant’s reply (Matter of Forest Riv., Inc. v Stewart, 34 AD3d 474 [2006]) and is further, not enumerated as a basis of defendant’s instant motion to dismiss.

Based on the foregoing, defendant’s motion is granted to the extent that defendant may interpose an answer within 30 days, raising all applicable defenses.

Dated: March 22, 2019
Brooklyn, New York
_______________________
HON. ODESSA KENNEDY
Judge of the Civil Court

714648/16

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040

For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490

Plaintiff’s motion and defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title Number

Plaintiff’s Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1

Defendant’s Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2

Plaintiff’s Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff’s [*2]purported failure to appear for four Examinations Under Oath (“EUO”) or alternatively, based upon defendant’s founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.

Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff’s assignor’s purported non-appearances.

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).

Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of “the fact or [a] founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). “[A]n insurer’s evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party’s conduct ‘may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'” (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff’d, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).

Upon review of defendant’s EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.

Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 ^[FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant’s founded belief is based upon the inconsistent testimonies between the parties.

Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant’s proofs are insufficient to raise a triable issue of fact.

Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff’s employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).

Therefore, based upon the foregoing, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys’ fees and costs.

This constitutes the Decision and Order of the court.

Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.

Footnotes

Footnote 1:Defendant demonstrated its compliance with CPLR 3116 through the affidavits of service of Darryl Pierre, an employee of Abrams, Cohen & Associates, who was retained by defendant to schedule and conduct Examinations Under Oath.

718659/17

For plaintiff:
David Landfair Esq.
Kopelevich & Feldsherova PC
241 37th Street, Suite B439
Brooklyn, NY 11232

For defendant:
Allan Hollander, Esq.
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 220
Melville, NY 11747

RECITATION, AS REQUIRED BY CPLR2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion

Answering Affidavit 2

Reply Affidavit

In this action to recover first party no fault benefits, defendant moves for an order granting summary judgment and dismissing the complaint based on plaintiff’s failure to respond within 120 days to defendant’s initial request for verification.

In support of the motion, defendant submits the affidavits of its claim examiner in New York, Ms. McAndrews, and an employee of Auto Injury Solutions “AIS,” in Alabama, Ms. Ulmer. AIS is retained by defendant to receive and disseminate incoming mail related to no fault claims made against defendant, and, to mail medical providers or their assignees, verification requests which claims adjusters in New York electronically transmit to AIS. Ms. Ulmer submits two different affidavits, both dated August 4, 2017, which set forth AIS’s procedure for mailing verification requests, and procedure for documenting its receipt of incoming mail. Ms. McAndrews’ affidavit describes defendant’s procedures for electronically preparing and transmitting to AIS, defendant’s requests for verifications and denials.

Summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman at 395).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]).

“A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570, 774 NYS2d 72 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]).

In the instant action, the basis of defendant’s motion, to wit, plaintiff’s failure to provide requested verifications, requires defendant to unequivocally prove by admissible evidence that it did not receive the requested verification. Defendant’s conclusory denial of receipt, is insufficient to make out prima facie showing of defendant’s entitlement to summary judgment. (See Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 36 N.Y.S.3d 46 [App Term, 2nd Dept 2016]).

While any mail containing plaintiff’s response to verification request would have been received by AIS in Alabama, Ms. McAndrews, defendant’s adjuster in New York, is the only affiant who states that AIS did not receive response to the verification requests, absent any evidence of her personal knowledge of AIS’s incoming mail procedures. Without demonstrating her personal knowledge of AIS’s internal mailing practices, Ms. McAndrew’s assertion that AIS did not receive verification responses lacks probative value. (see J.O.V. Acupuncture, P.C. v Amex Assur. Co., 55 Misc 3d 127[A], 55 N.Y.S.3d 692 [App Term, 1st Dept 2017]).

Ms. Ulmer, the affiant purportedly knowledgeable of AIS’s mailing procedures, states that she conducted a diligent search of the records in possession of AIS regarding the instant matter. She then lists the records, which she states are “annexed hereto,” but does not identify any exhibit, to which the described records are attached. Rather, there are some exhibits to the motion that contain records, which only defense counsel references in his affirmation. Defense counsel does not submit proof however, that the records annexed to those exhibits, are the records referenced in Ms. Ulmer’s affidavit, and that those records are all the documents Ms. Ulmer’s search had yielded.

Absent admissible evidence that the documents contained in the exhibits represent the totality of all documents obtained by Ms. Ulmer, defendant fails to establish, through any exhibit, the nature and the extend of the records that are in AIS’s possession.

Furthermore, Ms. Ulmer’s affidavit, describing the records she had obtained through her search, is ambiguous and insufficient to establish defendant’s burden that AIS has not received response to the verification requests.

Ms. Ulmer’s states that her “investigation revealed the following:” which she then attempts to numerically describe. Yet, Ms. Ulmer’s numeric description refers only to events, not the essence of the document necessary for its identification. Immediately appearing after the number one, the affidavit states: “document was received by AIS on 1/18/2017,” after number two, that “the document was indexed,” following numbers four and the five that “copies of EOR and NF10 were sent to the provider” and “to the assignor.”

As to item number three, Ms. Ulmer states that “the charges listed on the bill totaled $1039.69″ without providing any further details.

The inherent vagueness of Ms. Ulmer’s affidavit in her description of the records she had obtained, undermines defendants’ attempt to prove that AIS has not received response to the verification requests.

Moreover, while Ms. Ulmer could have avoided the ambiguity by unequivocally stating that her search did not reveal any response to verification requests, Ms. Ulmer, in contrast to Ms. McAndrews, does not make any such statement. Nor does she state that the records she attempted to describe, are the only records in AIS’s possession.

Furthermore, the ambiguous affidavit becomes evidently inaccurate, when Ms. Ulmer incorrectly states “all the documents” (including the bill prepared by plaintiff in the sum of $1039.69) were “prepared” in the regular course of” business of AIS, underscoring the unreliability the affidavit.

The Court further notes that Ms. Ulmer submits two distinct affidavits that are both executed in Alabama on August 4, 2017. CPLR 2309(c) states that an oath taken outside of New York State must be accompanied by a certificate, commonly referred to as “certificate of conformity” attesting that the oath that was taken in the foreign state was done so in accordance with the laws of that jurisdiction or of New York.

Defendant fails to produce an original “certificate of conformity” for either affidavit. Instead, defendant annexes to both affidavits identical copies a single certificate of conformity. Even, should the court decide to accept copies of the certificate of conformity in lieu of the original, defendant’s failure to provide copies of two separate certificates of conformity for each affidavit, renders the affidavits inadmissible as a matter of law.

Based on the foregoing, defendant failed to establish its entitlement to summary judgement by admissible evidence. Defendant’s motion for summary judgement is therefore denied.

Dated: November 21, 2018
ODESSA KENNEDY
JUDGE OF THE CIVIL COURT

[*1]

Civil Court of the City of New York, Kings County, October 18, 2018

APPEARANCES OF COUNSEL

Law Offices of Daniel J. Tucker, Brooklyn (John Reinus of counsel), for defendant.

Zara Javakov PC, Brooklyn (Adam Waknine of counsel), for plaintiff.

Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that the action is barred by the doctrine of res judicata, or in the alternative, for an order granting defendant summary judgment pursuant to CPLR 3212.

Plaintiff Kerisli Chiropractic, P.C. commenced the instant action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an August 23, 2010 automobile incident.

Defendant insurer commenced a declaratory judgment action in Supreme Court against Kerisli Chiropractic, P.C. and moved for summary judgment for an order “adjudging and [*2]decreeing that” Kerisli Chiropractic, P.C. “is not entitled to no fault benefits” for the August 23, 2010 collision.

Kerisli Chiropractic, P.C. did not answer or oppose the motion. The Supreme Court issued an order, reciting the specific declaratory relief requested by the insurer and granting the motion on default.

In the instant no-fault action, defendant insurer moves to dismiss the complaint claiming that the Supreme Court’s order in the declaratory judgment action is a conclusive final determination, which pursuant to res judicata, bars the instant action.

In opposition, plaintiff contends defendant insurer failed to establish its entitlement to res judicata or collateral estoppel, arguing that orders granted on default are not preclusive, and that res judicata only applies to those issues that have been litigated and determined in a prior action, not to actions where an issue due to a party’s default is not litigated. Citing federal cases, plaintiff asserts that Supreme Court’s order granted on default has thus no preclusive effect. (See In re Adler, Coleman Clearing Corp., 205 Fed Appx 856, 857 [2d Cir 2006], citing Abrams v Interco Inc., 719 F2d 23, 34 n 9 [2d Cir 1983].){**61 Misc 3d at 1006}

Pursuant to res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2d Dept 2008], affg 2005 WL 6205455 [Sup Ct, Queens County 2005]).

This court notes plaintiff relies on federal cases in its assertion that default judgments lack preclusive effect. However, under New York state law, default judgments which have not been vacated are final orders, thus preclusive. (See Lazides v P & G Enters., 58 AD3d 607 [2d Dept 2009], revg 2007 WL 6861118 [Sup Ct, Kings County 2007].) The courts have reasoned that to hold otherwise would destroy or impair the rights or interests established by default judgment. (See Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Great Health Care Chiropractic, P.C. v Progressive Ins. Co., 48 Misc 3d 134[A], 2015 NY Slip Op 51077[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court’s declaratory default judgment order against Kerisli Chiropractic, P.C. has not been vacated, the order hence constitutes a final determination, which precludes the instant no-fault action.

Plaintiff also cites cases holding that a mere entry of default judgment in a declaratory judgment action “cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar.” (See Active Chiropractic, P.C. v 21st Century Ins. Co., 58 Misc 3d 156[A], 2018 NY Slip Op 50200[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

The above cases are distinguished from the case at bar, as there is no declaration made by the default judgment orders in the declaratory judgment action at issue in each case. This court takes judicial notice respectively of the default judgment orders in the declaratory judgment actions in Active Chiropractic, P.C., from Supreme Court, New York County dated December 8, 2014, and in Promed Orthocare Supply, Inc., from Supreme Court, Nassau County dated March 15, 2010. (See Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 [*3]AD3d 121 [2d Dept 2018].){**61 Misc 3d at 1007}

In Active Chiropractic, P.C. (2018 NY Slip Op 50200[U], *1), the Supreme Court’s order in the declaratory judgment action merely states that an unrelated relief requested by insurer is granted, and that “the remainder of the motion [is] granted without opposition.” The order does not indicate that a judicial declaration was made by the court, or that a declaration was a relief sought by movant. As the Supreme Court’s order merely grants the entry of default judgment, and is devoid of a judicial declaration, the Appellate Term, Second Department found that the order could not be considered a final order. Absent a judicial declaration, in a declaratory judgment action, it would be impossible to deem or enforce the order as preclusive.

Similarly, in Promed Orthocare Supply, Inc., the Supreme Court’s order in the declaratory judgment action merely states that “plaintiff’s unopposed motion for a judgment on default as against” various defendants “is granted.” The order makes no reference to a judicial declaration or indicates that a declaration was sought in the motion. As with the Supreme Court order at Active Chiropractic, P.C., the Appellate Term, Second Department in Promed Orthocare Supply, Inc. held that the order could not be considered a conclusive final determination, absent declaration of the issues litigated on default. (See Promed Orthocare Supply, Inc., 2015 NY Slip Op 51886[U], *1; Active Chiropractic, P.C., 2018 NY Slip Op 50200[U]; see also Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].) To have res judicata effect in a declaratory judgment action, the order must specify the issues that were determined so that those issues could be identified as barred in future litigations.

In the instant no-fault action, contrary to Active Chiropractic, P.C. and Promed Orthocare Supply, Inc., the Supreme Court’s declaratory judgment order determines the rights of the parties and is thus preclusive as a final order. The Supreme Court’s order recites the specific declaratory relief requested by the insurer, and grants the motion on default, leaving no ambiguity as to the substance of the court’s declaration.

An order specifying the court’s declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default. (See Lazides v P & G Enters. at 607; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court order pertaining to the instant no-fault action is a conclusive final determination of the rights of{**61 Misc 3d at 1008} the parties herein, plaintiff is barred from relitigating the claim pursuant to the doctrine of res judicata.

Lastly, plaintiff cites Metro Health Prods., Inc., which is distinguished from the facts of the instant action. Contrary to the case at bar, the order in the declaratory judgment action at issue in Metro Health Prods., Inc. directed the insurer to settle judgment on notice. The insurer failed to settle judgment on notice, and the Appellate Term, Second Department held that an order to settle judgment on notice is not a conclusive final determination and is thus not preclusive. (See Metro Health Prods., Inc., 48 Misc 3d 85.)

As the Supreme Court’s declaratory judgment pertaining to the instant action is a final conclusive determination, hence with preclusive effect, defendant’s motion is granted. It is hereby ordered that the action is dismissed.

722422/16

For Plaintiff:
Emilia I. Rutigliano Esq.
Law Offices of Emilia I. Rutigliano, PC.
1733 Sheepshead Bay Rd., Suite 11
Brooklyn, NY 11235

For Defendant:
Robyn Brilliant Esq.
333 W. 39th St, Suite 400
New York NY 10018-1410

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant cross-moves for summary judgment seeking dismissal of the complaint. After oral argument, the Court sua sponte vacates order dated November 17, 2017, in place of the following.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant, and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly denied.

The basis of Defendant’s cross motion is the failure of plaintiff’s assignor to attend IMES, which constitutes violation of a condition precedent to coverage. (See Stephen Fogel Psychological P.C. v Progressive Casualty Ins. Co., 35 AD3d 720 [2d Dept 2006], affg 7 Misc 3d 18 [App. Term, 2d Dept 2004]). However, to establish proper denial, the insurer must inform the applicant at the time the IME is scheduled, that the applicant will be reimbursed for any lost earnings and reasonable transportation expenditure incurred in attending the IME (11 NYCRR 65-3.5 (e)). Thus, the insurer has the burden to demonstrate that the IME notice contained the requisite reimbursement language. (See Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Business v Professional Health Radiology, 143 AD3d 536, 39 N.Y.S.3d 428 [1st Dept 2016]).

In the case at bar, defendant failed to establish that the IME notice sufficiently apprised the assignor of such reimbursement. The reimbursement language merely recites the governing statute which states ” the insurer shall inform the applicant” of the right to reimbursement. The notice is devoid of a plain, affirmative statement, that the applicant has the right to receive such reimbursement.

The reimbursement language is further obscured in very fine italicized print, which is inexplicably, smaller than the print used in the remainder of the letter, and potentially unreadable, thus facially deficient.

Moreover, the presentation of the language in the notice, potentially creates ambiguity and confusion regarding the origin of the language. There is no explanation in the notice, that the reimbursement language is recitation of statute or a legal requirement. The only reference to the governing statute, is that the letter ‘e’, immediately appears before the reimbursement language, presumably signifying the end of the citation, 11 NYCRR 65-3.5 (e). However, said letter would be meaningless, if not perplexing, to applicants who lack the requisite legal training to decode its meaning.

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: July 6, 2018
ODESSA KENNEDY
Judge of the Civil Court

43537/15

For plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Ave., 3rd Fl, Suite 7
Brooklyn NY 11235

For defendant:
Matteo G. Sandusky, Esq.
Law Offices of Daniel J. Tucker
One Metro Tech Center, 7th Fl
Brooklyn, NY 11201

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Answering Affidavit 3

Reply Affidavit 4

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b). Defendant cross-moves for summary judgment, seeking dismissal on the basis that the plaintiff’s assignor failed to appear for an EUO.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that [*2]the no-fault claim forms underlying the action were submitted to the defendant and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 2010 NY Slip Op. 08933 [App. Div., 2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly, denied.

Defendant, in support of the cross-motion for summary judgement, submits affirmation of Netanel Bencheim, Esq. dated November 20, 2017 which states that the assignor did not appear for an EUO.

Failure to appear for an EUO violates a condition precedent to coverage, and the burden is on defendant to show that the requested party failed to appear (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the case at bar, defendant failed to submit competent proof of assignor’s nonappearance. Mr. Bencheim, a shareholder of Bencheim and Associates states that defendant retained his law firm to conduct plaintiff’s EUO which was scheduled to be held on November 30, 2010, and rescheduled to December 29, 2010 due to plaintiff’s nonappearance. Mr. Bencheim states that he has personal knowledge that “the plaintiff did not attend the examination under oath on December 30, 2010″ which is a day after the scheduled date of the examination. As such, defendant failed to establish that plaintiff failed to appear for the examination on the scheduled date of December 29, 2010.

Moreover, Mr. Bencheim states that he has personal knowledge of plaintiff’s non-appearance for the EUO based on his review of the file. The affirmant does not specify or provide the documents he reviewed, or identify the creator(s) of the unspecified documents. Nor does Mr. Bencheim explain the basis of his detailed recollection of assignor’s non-appearance approximately seven years prior to his November 20, 2017 affirmation.

Accordingly, Mr. Bencheim’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]).

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: May 17, 2018
ODESSA KENNEDY
Judge of the Civil Court

[*1]

Civil Court of the City of New York, Kings County, February 24, 2018

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for plaintiff.

Jaffe & Koumourdas & Mohavicka, LLP, New York City (Thomas Torto of counsel), for defendant.

Background/History

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, inter alia, after a final appellate decision in its favor, for additional attorney’s fees pursuant to 11 NYCRR 65-4.6 of “no less than $250,000.00.”

The original order of the Honorable Carolyn Wade, dated March 6, 2009 (2009 WL 10454195 [Civ Ct, Kings County, Mar. 6, 2009, index No. 1208322005]), denied plaintiff’s motion for summary judgment based upon its failure to establish its prima facie case. Subsequently, the decision and order was appealed to the Appellate Term, for the Second, Eleventh and Thirteenth Judicial Districts, which affirmed (31 Misc 3d 21 [2011]). Thereafter, the Appellate Division in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (114 AD3d 33, 46 [2d Dept 2013]), with two dissenting Justices, reversed, holding,

“(T)he plaintiff established, prima facie, its entitlement to judgment as a matter of law by demonstrating that its prescribed statutory billing forms used to establish proof of claim (see 11 NYCRR 65-1.1) were mailed to and received by the defendant and that the defendant failed to either timely pay or deny the claims (see Insurance Law § 5106; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d at [*2]1082; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604).”^[FN1]

The Court of Appeals affirmed. (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015].){**59 Misc 3d at 581}

Arguments of the Parties Regarding Additional Attorney’s Fees

For context, the court incorporates by reference its prior interim decision and order dated June 2, 2017, and restates relevant portions summarizing the arguments of respective counsel.

Plaintiff argued, inter alia, that as the legal issue of a medical provider’s prima facie showing was an issue that was considered by the Court of Appeals, the same was novel and unique and therefore warrants additional legal fees.

In opposition, defendant contended, inter alia, that plaintiff’s application for attorney’s fees of “no less than $250,000” is beyond this court’s jurisdictional limit, and that nonetheless, plaintiff is not entitled to excess attorney’s fees because the issues in this no-fault action were not novel or complex. For example, in support of its appeal to the Appellate Term, plaintiff’s counsel served and filed a four-page appellant’s brief and when the matter reached the Court of Appeals upon defendant’s appeal of the order of the Appellate Division, the Court of Appeals decision began with established principles encompassing a plaintiff medical provider’s prima facie case and concluded by predicating its conclusion on the admissibility of an affidavit. In short, defendant argued that the issue of evidentiary proof on a summary judgment motion is not novel or unique and that even if plaintiff’s counsel “expended a great deal of ‘time, money and effort’ on this case . . . it is not enough by itself to warrant the award of additional attorney’s fees.”

As to additional attorney’s fees in matters involving a claim for first-party no-fault benefits, 11 NYCRR subpart 65-4, Regulation No. 68-D governs the limitations of the same. The applicable subdivisions read as follows:^[FN2]

“(e) . . . the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850.

“(f) Notwithstanding the limitations listed in this section, if the arbitrator or a court determines that the issues in dispute were of such a novel or unique{**59 Misc 3d at 582} nature as to require extraordinary skills or services, the arbitrator or court may award an attorney’s fee in excess of the limitations set forth in this section. An excess fee award shall detail the specific novel or unique nature of the dispute which justifies the award.” (11 NYCRR 65-4.6 [emphasis added].)

As was observed in Maxwell v State Farm Mut. Auto. Ins. Co. (115 AD2d 190, 192 [3d Dept 1985]):

“The focus on the excess award determination is not necessarily on the results achieved [*3]but on the issues presented, i.e., whether they are novel and/or unique and necessitate extraordinary efforts on the attorney’s behalf . . . . [In this case] the primary issues were settled on well-established rules of contract law and statutory construction. While counsel is to be commended for his efforts, the fact remains that the issues were not so novel or unique as to justify an excess fee award.”

In Dumlao v State Farm Ins. Co. (173 AD2d 517 [2d Dept 1991]), the Court held that the issue of whether the injury was caused by an accident covered under the policy or whether it resulted from a preexisting arthritic condition was not sufficiently unique to warrant departure from the maximum attorney’s fee provided for under the insurance regulation.

In the instant matter, the issue of whether an affidavit of service from a third-party billing company is sufficient to establish plaintiff medical provider’s prima facie case—i.e., entitlement to reimbursement for assigned first-party no-fault benefits—was ultimately certified by the Appellate Division to the Court of Appeals. Inasmuch as the Court of Appeals accepted the certified question, this court found that the issue presented is sufficiently novel so as to warrant consideration of additional attorney’s fees in accordance with 11 NYCRR 65-4.6.^[FN3]

{**59 Misc 3d at 583}As such, a hearing was warranted to determine additional attorney’s fees. Parenthetically, plaintiff’s counsel’s contention that a comparatively large attorney’s fee for a modest principal award is appropriate based upon Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co. (179 AD2d 645 [2d Dept 1992]) is misplaced. The appropriateness of an increased attorney’s fee in excess of $850 will be determined based upon applicable considerations of a reasonable attorney’s fee (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839 [2016] [“the award of attorneys’ fees, whether pursuant to agreement or statute, must be reasonable and not excessive”]).

In Matter of Rahmey v Blum (95 AD2d 294, 300 [2d Dept 1983]), which is a seminal case on the calculation of a reasonable attorney’s fee, the Court laid out an “analytical framework . . . to aid the courts in computing a reasonable attorney’s fee.” (See also Law Off. of Thaniel J. Beinert v Litinskaya, 43 Misc 3d 1205[A], 2014 NY Slip Op 50504[U] [Civ Ct, Kings County 2014].)

The court in Ousmane v City of New York (22 Misc 3d 1136[A], 2009 NY Slip Op 50468[U], *9-10 [Sup Ct, NY County 2009]) utilized the lodestar method, as elaborated in Rahmey, of determining the reasonableness of awarding attorney’s fees and that methodology is expressed as follows:

“A. Hours Reasonably Expended

“The first step to be taken in arriving at a fair and appropriate award of attorneys’ fees [*4]under the lodestar method is to determine whether the number of hours claimed were reasonably ‘expended from contemporaneous time sheets.’ Becker v. Empire of America Federal Savings Bank, 177 AD2d 958 (4th Dept 1991); see also Rahmey, 95 AD2d at 300-301. The court need not automatically accept inadequately documented hours or those hours which reflect ‘padding, i.e., hours that are excessive or otherwise unnecessary.’ Rahmey, 95 AD2d at 301. The following factors are also to be considered in assessing the reasonable hours worked: the extent to which the hours reflect inefficiency or duplicative work; legal work versus non-legal work, investigations, and other work performed{**59 Misc 3d at 584} by non-lawyers; time spent in court differentiated from out-of-court efforts; and the court’s own knowledge, experience and expertise as to the time required to complete a similar task. Id.; see also Matter of Spingarn, 164 Misc 2d 891, 894 (Sup Ct, NY County 1995).” (Emphasis omitted.)

Regarding the hourly fee charged by counsel making the application for attorney’s fees, the court in Carroll v Weill (2008 NY Slip Op 32512[U], *8 [Sup Ct, NY County 2008, Ramos, J.]) stated,

“To determine the reasonable hourly billing rate, the ‘prevailing market rate’ or the rate ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation’ applies (Blum v Stenson, 465 US 886, 896 [1984]); Farbotko v Clinton County of N.Y., 433 F3d 204 [2d Cir 2005]).”

While it is well established that “[t]he focus on the excess award determination is not necessarily on the results achieved but on the issues presented, i.e., whether they are novel and/or unique and necessitate extraordinary efforts on the attorney’s behalf” (Maxwell, 115 AD2d at 192), there is scarcely any case law on the determination of an appropriate attorney’s fee award in this specialized field of no-fault law.

In Liebman v New Jersey Mfrs. Ins. Co. (123 Misc 2d 697 [Civ Ct, Bronx County 1984]), the court granted an excess fee award based upon the court granting an hourly rate that was found within the regulations while allowing the jury to determine the number of hours. At the time, the court held that the attorney’s compensation should be $75 per hour for “out of court time” and $150 per hour for “in court time” (Liebman, 123 Misc 2d at 701). Prior to the repealing of the original Regulation No. 68, which implemented New York’s No-Fault Law, in 2001, the provision pertaining to an attorney’s fee, former 11 NYCRR 65.17 (b) (6) (iv) dictated that

“(a) for preparatory services relating to the arbitration forum or court, the attorney shall be entitled to receive a fee of up to $70 per hour . . . and . . .

“(b) in addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court.”

The revised Regulation No. 68-D, effective post April 5, 2002, incredibly, did not change the hourly compensation (former 11{**59 Misc 3d at 585} NYCRR 65-4.6 [d] [1], [2]). Lastly, the sixth amendment to Regulation No. 68, which is not applicable to the services at issue, which revised certain aspects of attorney’s fees, likewise, did not change an hourly compensation rate for the practice of no-fault law (11 NYCRR 65-4.6 [c]). It appears that the hourly compensation rate was largely unchanged albeit modestly increased from $35 per hour for out of court services and $50 per hour for in court services in the late 1970s (11 NYCRR 65.16 [c] [7] [iii] [a], [b]).

However, the statute in effect at the time services were rendered, 11 NYCRR 65-4.6 (f) (the most recent amendment on Feb. 4, 2015, contains virtually the same language found but under subdivision [e] of 11 NYCRR 65-4.6), is clear and unambiguous, and the words “[n]otwithstanding the limitations listed” and “court may award an attorney’s fee in excess of the limitations,” will be given their plain meaning (State of New York v Patricia II., 6 NY3d 160[*5][2006]) and a legal fee based on the usual and customary hourly fees charged by attorneys practicing no-fault law, taking into consideration reasonably comparable skill, experience, and reputation, under a lodestar or quantum meruit standard, will be awarded if at least one of those standards is met.

Although this court in its interim order dated June 2, 2017, determined that it would award “reasonable” attorney’s fees based on the lodestar standard, the court may also make an award under quantum meruit through its inherent authority to do so. (See Beacon Fed. Sav. & Loan Assn. v Marks, 97 AD2d 451 [2d Dept 1983].)

Even where the attorney rate is found to be reasonable, the court may reduce the fee if it finds the amount of time spent rendering legal services was excessive. See Metropolitan Lofts of NY, LLC v Metroeb Realty 1, LLC (46 Misc 3d 1222[A], 2015 NY Slip Op 50251[U], *12 [Sup Ct, Kings County 2015, Demarest, J.]):

“The Court has further determined, however, that a 10% discount is necessitated by the duplication apparent in some of the billing. Although the hourly billing rates are reasonable, the number of hours is found to be excessive (see NYCTL 1996-1 Trust v Stavrinos Realty Corp., 113 AD3d 602, 604-605 [2d Dept 2014]; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1008, 1010 [2d Dept 2010]; Friedman v Miale, 69 AD3d 789, 791 [2d Dept 2010]).”

{**59 Misc 3d at 586}Lastly, the court noted that as the attorney’s fees sought are statutory and are not a part and parcel of the principal award, the jurisdictional limit of $25,000 is not applicable (see NY City Civ Ct Act § 201; Metrotran Adv. Trust Fund v Cado Trans., 156 Misc 2d 725 [Civ Ct, Kings County 1993]).

The Court in DeGregorio v Bender (52 AD3d 645, 646 [2d Dept 2008]) summarized the standards:

“In fixing an award of legal fees in quantum meruit, the court should consider ‘evidence of the time and skill required in that case, the complexity of the matter, the attorney’s experience, ability, and reputation, the client’s benefit from the services, and the fee usually charged by other attorneys for similar services’ ” (citing Rosenzweig v Gomez, 250 AD2d 664 [1998]).

The Attorney’s Fee Hearing

The court held an attorney’s fee hearing on September 26, 2017, September 27, 2017, September 28, 2017, and October 3, 2017, pursuant to 11 NYCRR 65-4.6.

Testimony of Max Valerio, Esq. (Plaintiff’s Witness)

The court heard testimony from Max Valerio, Esq., a subpoenaed witness, who testified on behalf of the plaintiff’s counsel that he is a former partner of the law firm and has worked on “hundreds of appeals.” Mr. Valerio estimated that he spent approximately 20 hours doing research and 20 hours writing the four-page brief which was submitted to the Appellate Term. Mr. Valerio had no independent recollection and no contemporaneous time records. Mr. Valerio estimated that he spent 5-10 hours preparing for the Appellate Term argument. Mr. Valerio testified that he also spent 10-20 hours preparing the motion for leave to appeal to the Appellate Division. After the motion was granted, he was involved in drafting the brief which was eventually submitted to the Appellate Division. No one else helped him in researching, writing or editing the brief. Mr. Valerio testified that he “probably” spent 80 hours working on the appellate brief, or a period of approximately two weeks. There was no record on appeal prepared by plaintiff’s counsel inasmuch as the appeal was based on the clerk’s return. Mr. [*6]Valerio testified that he read the opposition brief from the defendant and spent between 10-20 hours working on the reply and two to four hours preparing for oral argument in the Appellate{**59 Misc 3d at 587} Division. Mr. Valerio’s hourly rate in 2005 ranged from $300-$500 per hour depending on the nature of his legal services rendered. There was an argument he made in the Appellate Division which lasted one-half hour.

The court accepts Mr. Valerio’s testimony to the extent that he performed legal services regarding the appeal covering the period up to and including the argument before the Appellate Division, and that he alone worked on the briefs, and that the lowest rate utilized when billing at an hourly rate was $300 per hour, but otherwise finds his testimony generally not credible.

Testimony of David Gottlieb, Esq. (Plaintiff’s Witness)

The court heard testimony from David Gottlieb, Esq., who worked for plaintiff’s counsel in 2010 and has perfected hundreds of appeals in the Appellate Term, and the Appellate Division, First and Second Departments, as well as two appeals in the New York State Court of Appeals. Mr. Gottlieb was on Brooklyn Law School’s Law Review and was admitted in 2005. Mr. Gottlieb has conducted approximately 100 no-fault bench trials. Mr. Gottlieb prevailed in his law firm’s competition as to who would present the oral argument in the Court of Appeals. The draft of the Court of Appeals brief was circulated throughout the law firm for feedback from other members of the firm. Mr. Gottlieb testified that he spent approximately six hours reviewing the record, and eight hours reviewing and researching citations within the defendant’s brief. The first draft of the Court of Appeals brief took 10 hours, the second draft took 20 hours. The final draft took 10 hours. There were at least 43 emails involving feedback from other members of the firm. The reply brief (Court of Appeals) took six hours to get through (14 pages). Mr. Gottlieb checked all cites and quotes. After reviewing the reply in the Court of Appeals, Mr. Gottlieb prepared a motion to allow the filing of amicus briefs. The preparation for the argument in the Court of Appeals was 28 hours. Mr. Gottlieb reviewed videos of arguments made in the Court of Appeals in preparation and spent a total of 130 hours working on the appeal to the Court of Appeals including oral argument. There were costs from the appellate printers, but no bills for these costs were admitted into evidence. Mr. Gottlieb did not keep contemporaneous time records.

The court accepts Mr. Gottlieb’s testimony that he performed legal services regarding the appeal covering the period of time{**59 Misc 3d at 588} from the date of the Appellate Division decision through the decision in the Court of Appeals, but because there was inadequate testimony regarding hourly rate fees and no contemporaneous time records, the court otherwise finds his testimony insufficient for establishing a reasonable hourly rate or time spent providing legal services. Under cross-examination, regarding certain services performed, Mr. Gottlieb testified as follows, “from what I remember . . . (2 hours of watching videos)” and “cannot tell for sure.”

Stephan Belinfanti, Esq. (Plaintiff’s Witness)

Mr. Belinfanti was admitted to the bar in 2001, and worked for Country-Wide Insurance Co. as a staff attorney in mid-2004, as well as other insurance defense firms and eventually started working for plaintiff’s counsel in September 2010. Mr. Belinfanti has conducted hundreds of bench trials and six jury trials, three of which concluded with a verdict, and has perfected a number of appeals. This court has had Mr. Belinfanti appear before it at numerous bench trials and recognizes his talent and competence. However, Mr. Belinfanti likewise did not keep any contemporaneous time records and the court is unwilling to accept testimony regarding estimates of “minimum” time spent in performing certain legal tasks. The court did not find Mr. [*7]Belinfanti’s testimony regarding attorney rates, to the extent there was such testimony, to be sufficient.

Gary Tsirelman, Esq. (Plaintiff’s Witness)

Mr. Tsirelman is the principal of the plaintiff’s counsel’s firm and has been an attorney for 16 years. Mr. Tsirelman is well qualified in the area of no-fault law having an office of 40 employees with 16 lawyers with 95% of his cases involving no-fault. Mr. Tsirelman testified that he spent 10 hours working on the appeal in the Appellate Term, six hours researching and editing, three hours working up defendant’s brief, and one hour discussing the appeal with Mr. Valerio. Regarding the appeal to the Appellate Division, Mr. Tsirelman spent 40 hours working on the appeal as follows: 20 hours editing/researching, 10 hours reading and rereading defendant’s brief and 10 hours discussing procedure and strategy with Mr. Valerio. Mr. Tsirelman detailed how 10 attorneys participated in moot court in preparation for the argument in the Court of Appeals. Mr. Tsirelman spent 10 hours editing and researching the Court of Appeals brief, three hours considering anticipated opposition,{**59 Misc 3d at 589} and six hours helping to get Mr. Gottlieb ready for his oral argument in the Court of Appeals.

Mr. Tsirelman testified that senior attorneys are billed at $500/hour for Racketeer Influenced and Corrupt Organizations Act no-fault defenses, declaratory actions, and breach of contract cases. This rate is placed in all retainers except for no-fault cases. The court finds that certain of the tasks were duplicative and excessive.

Sedmund Resciniti (Defendant’s Witness)

Mr. Resciniti is an attorney with 57 years’ legal experience who has a significant background in insurance law and testified on behalf of the defendant as someone with specialized knowledge in the area of No-Fault Law. Mr. Resciniti testified that he was employed by Allstate Insurance Company in 1960 and since 1962 maintained his own practice with a specialty in insurance law and no-fault. Although Mr. Resciniti testified regarding his interpretation of the statute as to the maximum hourly rate that can be charged by an attorney in an excess fee application, such an interpretation is completely disregarded because such province resides exclusively with the court. (See Measom v Greenwich & Perry St. Hous. Corp., 268 AD2d 156, 159 [1st Dept 2000] [“(e)xpert testimony as to a legal conclusion is impermissible”], citing People v Kirsh, 176 AD2d 652, 653 [1991], lv denied 79 NY2d 949 [1992].) However, the court does consider Mr. Resciniti’s opinion that the hourly rate for no-fault legal services was $50 per hour between 2005 and 2015.^[FN4] Mr. Resciniti has perfected six to seven appeals in the Court of Appeals, 35-40 appeals in the Appellate Division, and argued in approximately 20 matters in the Appellate Division, First and Second Departments, but has never tried a no-fault case in civil court and has only appeared in arbitration proceedings. Mr. Resciniti testified as to the time it would take to accomplish certain tasks by the plaintiff and that any time above the following estimates is unreasonable: drafting Appellate Term brief (1.5-2 hours); preparation for and oral argument in the Appellate Term (1.5 hours); drafting motion for leave to appeal to the Appellate Division (duplicative of Appellate Term motion) (one hour); drafting Appellate Division brief (12 hours); drafting reply brief (four hours); oral argument in Appellate Division (and preparation, two hours); drafting brief in Court{**59 Misc 3d at 590} of Appeals (eight hours); and oral argument in Court of Appeals (and preparation, two hours). According to Mr. Resciniti, the total reasonable hours for the appeal could [*8]not exceed 32.5-33 hours and any hours in excess of these hours is duplicative or excessive.

The court finds that the testimony of Mr. Resciniti comes much closer to the reasonable hours expended in prosecuting the appeals than the evidence presented by plaintiff’s counsel and the estimates of defendant’s witness will be treated as a concession of the reasonable minimum number of hours that were required to prosecute the appeals. Where defendant presents an expert who renders an opinion regarding the reasonable hours expended, defendant concedes those hours. (Cf. Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975] [“in the absence of either party challenging the verity of the alleged facts, as is true in the instant case, there is, in effect, a concession that no question of fact exists”]; cf. Schifter v Commercial Travelers Mut. Acc. Assn. of Am., 183 Misc 74 [1944], affd 269 App Div 706 [1945]; see also Annotation, Proper Procedure and Course of Action by Trial Court, Where Both Parties Move for Summary Judgment, 36 ALR2d 881.)

Legal Analysis

The court is unable to utilize the lodestar method to determine reasonable attorney’s fees because plaintiff’s counsel’s firm did not keep any contemporaneous billing records and did not provide the court with proof of a “reasonable hourly billing rate,” by showing the “prevailing market rate” or the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation” (Carroll v Weill, 2008 NY Slip Op 32512[U], *8; Matter of Rahmey v Blum, 95 AD2d 294 [2d Dept 1983]). However, the court may accept, at a minimum, the 33 hours conceded by the defendant (cf. Kuehne & Nagel v Baiden) and the statutory rate of $70 for legal services rendered out of court or $80 for legal services rendered in court. (See former 11 NYCRR 65-4.6 [d] [1], [2].)

The court rejects all testimony regarding an hourly rate of plaintiff’s counsel’s attorneys of between $500 to $1,000 per hour because such testimony only pertained to hourly rates charged by plaintiff’s firm having to do with matters other than the type of litigation or appeal ultimately argued in the Court of Appeals. The court accepts plaintiff’s counsel’s respective testimony regarding the experience of its attorneys which included years of practice and areas of expertise.{**59 Misc 3d at 591}

Unlike federal courts which strictly apply only a lodestar analysis (New York State Assn. for Retarded Children, Inc. v Carey, 711 F2d 1136 [2d Cir 1983]), state courts frequently determine reasonable attorney’s fees on a quantum meruit basis in a multitude of contexts under its inherent authority. (See Matter of First Natl. Bank of E. Islip v Brower, 42 NY2d 471 [1977] [where court refused to accept contractual provision mechanically applying a rate of 15% for attorney’s fees upon default judgment and only accepted such percentage as a limitation of such “reasonable fees” up to such percentage based on a “quantum meruit” basis]; see Matter of Greenfield, 127 AD3d 1189, 1192 [2d Dept 2015] [involving an estate matter, where an appellate court affirmed the trial court’s quantum meruit award of attorney’s fees in the absence of the law firm keeping contemporaneous time records]; see Padilla v Sansivieri, 31 AD3d 64, 67 [2d Dept 2006] [a matter involving a personal injury case where a disbarred attorney is claiming a fee prior to his disbarment, “there is case law expressly recognizing that the calculation of an award of legal fees as a portion of a contingent fee and based on an hourly rate are both properly fixed as quantum meruit determinations”], citing Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 459 [1989].)

As Justice Rivera determined in Nawaz v Boryczka (34 Misc 3d 1234[A], 2012 NY Slip Op 50367[U], *2 [Sup Ct, Kings County 2012]), “quantum meruit” is defined to be “as much as he [or she] deserve[s].” (Black’s Law Dictionary 1119 [5th ed 1979], quantum meruit.) Making that [*9]determination requires an assessment of the value of the services rendered. (See Ruggiero v Gross Plumbing & Heating, 226 AD2d 984, 986 [3d Dept 1996] [where appellate court reversed trial court in making quantum meruit determination on papers because, “the affidavit submitted by the (law) firm in support of its fee request lacked evidence of other significant factors generally considered when determining fee requests under quantum meruit, namely, the total time spent, the hourly rate charged, the amounts customarily charged for similar services in the same locality and the difficulty of the case”].)

The time spent by plaintiff’s counsel in attending the attorney’s fee hearing is not compensable as a “fee on a fee.” (See Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]; Kumble v Windsor Plaza Co., 161 AD2d 259, 261 [1st Dept 1990].){**59 Misc 3d at 592}

Issue: Is there enough evidence in the record to award plaintiff’s counsel’s fees under a theory of quantum meruit?

At the hearing, numerous documents were admitted into evidence but these documents alone are insufficient to make a quantum meruit attorney’s fee award. (See Neals v Cox, 240 AD2d 380, 380-381 [2d Dept 1997] [“(a)ssuming, arguendo, that the case file was admissible in evidence, no evidence was submitted of the hours worked on the case and the respondent’s hourly rate. Accordingly, the respondent failed to prove the value of her services on a quantum meruit basis (see, Glickson v Eli Lilly & Co., 234 AD2d 416; Sparks v Barry’s Plumbing & Heating Corp., 230 AD2d 606; Ruggiero v Gross Plumbing & Heating, 226 AD2d 984)”].) Here, there is no doubt that time was spent in the preparation of the numerous documents that were placed into evidence, but the court would engage in pure speculation regarding establishing the actual time involved in preparing those documents.

Given that legal fees in no-fault cases are determined on an hourly rate or a percentage of the recovery (11 NYCRR 65-4.6 under current subdivision [c] [$70/$80 per hour] with a maximum of $1,400 for in/out of court services or under current subdivision [b] up to 20% of recovery not to exceed $1,360), and that plaintiff’s counsel’s firm practices virtually all no-fault law, some explanation should have been offered as to why no time records were kept.

The court is being asked to use its own experience and expertise (Matter of Rahmey v Blum, 95 AD2d 294, 300 [2d Dept 1983]) to determine the reasonable hours, if any, above the hours conceded by the defendant and to further determine the reasonable hourly rates, if determined, above those specified in the statute (11 NYCRR 65-4.6). The plaintiff’s counsel in its posttrial memorandum of law is asking the court to consider the case of Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co. (179 AD2d 645 [2d Dept 1992]) where the Appellate Court affirmed the trial court’s setting of the attorney hourly rate in a no-fault matter of $175 per hour in 1989 which adjusted by the Bureau of Labor Statistics inflation calculator is equivalent to $354 in 2017.

This court will apply a flat hourly rate of $250 as reasonable for the legal services provided and makes an award of a legal fee only to the following extent:{**59 Misc 3d at 593}

Therefore, based upon the foregoing, plaintiff’s motion for additional attorney’s fees pursuant to 11 NYCRR 65-4.6 is granted and defendant is directed to make payment of $12,325 to plaintiff’s counsel within 30 days of the court’s decision or plaintiff may enter judgment.

Footnotes

Footnote 1:The exception was plaintiff’s claim dated November 17, 2004, in the amount of $139, which was denied based on “results from [an] independent medical exam the claimant attended on [September 21, 2004].” (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 36.)

Footnote 2:Plaintiff commenced this action in September 2005, prior to the adoption of the sixth amendment to 11 NYCRR 65-4.6, and as such, the amendment is not applicable and the subdivision as cited is the text of the regulation prior to the amendment. However, it should be noted that amended subdivision (e) has the same language as found in former subdivision (f).

Footnote 3:Indeed, the acceptance of a certified question by the Court of Appeals is discretionary (see 22 NYCRR 500.27 [a]; see also 22 NYCRR 500.22 [b] [4] [requiring movants to submit, inter alia, “(a) concise statement of the questions presented for review and why the questions presented merit review by this Court, such as that the issues are novel or of public importance, present a conflict with prior decisions of this Court, or involve a conflict among the departments of the Appellate Division”]; Liriano v Hobart Corp., 92 NY2d 232, 243 [1998] [the Court of Appeals declined to accept a certified question where “(t)he Second Circuit’s opinion does not indicate that there is an unsettled or open question of New York substantive law”]; Tunick v Safir, 94 NY2d 709, 711-712 [2000] [the Court of Appeals noting that “the certification procedure can provide the requesting court with timely, authoritative answers to open questions of New York law, facilitating the orderly development and fair application of the law and preventing the need for speculation”]).

Footnote 4:In 2005 11 NYCRR 65-4.6 (d) (1) and (2) reflected an hourly rate of $70/$80 depending on in court or out of court work with a cap of $1,400.

[*1]

Civil Court of the City of New York, Kings County, December 18, 2017

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn, for plaintiff.

Peter C. Merani, P.C., New York City, for defendant.

Plaintiff’s motion to reargue its motion for summary judgment is decided as follows:

In this action to recover assigned first-party no-fault benefits, plaintiff submitted a claim form and invoice to defendant for services rendered to Cosby Reavis on October 8, 2013. According to plaintiff’s claim, these services related to various codes promulgated under the Official New York Workers’ Compensation Medical Fee Schedule (the fee schedule), including code 20999, which is a “By Report” code. Defendant denied plaintiff’s claim in part because plaintiff did not bill its services in accordance with the applicable fee schedule. Plaintiff filed the instant action and both parties moved for summary judgment.

With specific regard to plaintiff’s motion to reargue, this court denied plaintiff’s motion for summary judgment with respect to plaintiff’s claim for payment under code 20999 (52 Misc 3d 491 [2016]). The court reasoned that, because code 20999 is a “By Report” code, plaintiff was required to submit certain information about the services provided in order to establish a proper billing rate as part of its prima facie case. Plaintiff did not provide this information, and consequently, plaintiff did not meet its initial burden of proof on summary judgment.

Plaintiff now moves to renew and reargue its motion for summary judgment. A motion for leave to renew is addressed to the court’s sound discretion and can be granted only if it is shown that there are new facts, although in existence at the time the original motion was made, that were unknown to the movant and therefore were not brought to the court’s attention (Semenov v Semenov, 98 AD3d 962, 963 [2d Dept 2012]). To the extent the facts are new, plaintiff must offer a reasonable justification for its failure to present such facts on the prior motion (id.).

A motion to reargue must show that there was a point of law or fact that was overlooked in the prior motion, and cannot be based on arguments different from those originally stated in the prior motion (NYCTL 1998-1 Trust v Rodriguez, 154 AD3d 865, 865 [2d Dept 2017]; Rodriguez v Gutierrez, 138 AD3d 964, 966-967 [2d Dept 2016]).

Plaintiff argues that “academic literature” dictates that dry needling is commonly billed under code 20999, and attaches this “literature” to its motion to renew and reargue. As an{**60 Misc 3d at 683} initial matter, plaintiff does not explain why it did not offer this “literature” in support of its underlying motion for summary judgment, and so it cannot be considered for the motion to renew (Semenov, 98 AD3d at 963). Likewise, the court cannot consider this “literature” as part of the motion to reargue, as it is a new theory not advanced in the underlying motion (NYCTL 1998-1, 154 AD3d at 865; Rodriguez, 138 AD3d at 966-967).

Even if this court were to consider this “literature,” plaintiff provides no reason why the court should give it any weight or deference. The referenced document is titled “Local Coverage Determination (LCD): Pain Management (L33622).” Plaintiff offers no explanation about who authored the document, who uses this document, how it is used, or the weight, if any, the medical community gives the document. All this said, the document makes a passing statement that dry needling should be billed under code 20999. Even assuming this were true, it would not change the “By Report” designation in the fee schedule, which requires a medical provider to submit a report with its bill to establish the proper billing rate.

Additionally, plaintiff argues that this court incorrectly interpreted plaintiff’s prima facie burden as established by Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498, 507 [2015]). Plaintiff argues that Viviane Etienne holds that plaintiff’s prima facie burden is limited only to proving timely submission of a claim form, and that payment is overdue. In its underlying decision in this action, this court explained that, in order to determine the appropriate monetary value of services designated “By Report,” the Official New York Workers’ Compensation Medical Fee Schedule directs the medical provider to provide certain information to justify its billing. These documents and information (i.e., the “report”) are part of the “completed claim form” (see Viviane Etienne, 25 NY3d at 507), and thus part of plaintiff’s prima facie burden, so that defendant has sufficient notice of the services being billed in order to make a proper decision on the claim. Plaintiff does not argue that the court [*3]overlooked or misunderstood a point of law. Instead, plaintiff simply disagrees with the court’s reasoning.

After plaintiff filed the instant motion, the Appellate Term issued its decision in Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). {**60 Misc 3d at 684}In Bronx Acupuncture, the plaintiff medical provider sought payment for services submitted under a “By Report” code. The defendant insurance company denied the claim because the plaintiff did not provide certain documentation. The appellate court treated the documentation as a request for additional documentation, and held that defendant’s denial was not proper because it did not request the documentation in accordance with 11 NYCRR 65-3.5 (b) (Bronx Acupuncture, 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U], *1).

That said, the specific legal issue confronted in this action is whether the “report” in a “By Report” claim is an additional form of documentation or verification, as is generally the case when a carrier requests copies of medical records, or subsequent letters of medical necessity, or rather, in this unique circumstance, whether the “report” in a claim billed “By Report” is actually an integral part of the bill or claim form, and so whether it must be included in order to constitute a “completed claim form.” If it is the latter, then it would be an element of plaintiff’s prima facie burden to produce such a “completed claim form,” under Viviane Etienne. It would not constitute a separate, new element of the prima facie burden.

I acknowledge, support, and endeavor to follow the principles laid out in Viviane Etienne. Further, I am mindful of the Appellate Term’s decision in Bronx Acupuncture and its potential implication in this case. That said, I find that it is definitional to the submission of any claim that the claim form must be complete, and that to satisfy the prima facie burden laid out in Viviane Etienne, completed claim forms must provide the necessary data to identify both the value of the claim and the basis for calculating that value. It is the satisfaction of this prima facie threshold that shifts the burden to the insurer to pay or deny the claim, or to demand further verification, within the times specified in the regulations. Alone in the applicable fee schedule, the “By Report” code provides no inherent value. The code is a wild card which invites the provider to name the value of the claim and to explain, in narrative form, the basis of calculation for that value. Without the report, the “By Report” code is not reduced to a defined service with a calculated value, and the insurer has no basis to either pay or deny the associated claim. For these reasons, I find that the report is a necessary component of the bill for a “By Report” claim. Its absence renders the claim form incomplete, fails to satisfy the prima facie requirements laid out in Viviane Etienne{**60 Misc 3d at 685}, and so fails to trigger the insurer’s obligation to timely pay or deny the claim.

For the foregoing reasons, plaintiff’s motion to renew and reargue is denied.

725730/2016

Attorney for Plaintiff:
Damin J. Toell Esq. from the Law Offices of Damin J. Toell, P.C.

Attorney for Defendant:
Jamila Shukry Esq. from McCormack & Mattei, P.C.

In this action by a provider to recover assigned first-party no-fault benefits, Plaintiffs seeks reimbursement for chiropractic manipulation under anesthesia of assignor Maria Baez’ cervical spine, thoracic spine, lumbar spine, pelvis and left shoulder on December 21, 2016, January 4, 2016 and January 8, 2016, arising out of an accident on October 13, 2015.

Both parties stipulated that Plaintiff established its prima facie case by timely submitting the bills at issue to Defendant and Defendant established timely mailing the denial. The sole issues remaining for trial were the defenses of medical necessity and whether Plaintiff was properly reimbursed by Defendant pursuant to the fee schedule and calculations applied.

A bench trial was commenced and completed on October 24, 2017. Defendant produced a chiropractor, Dr. Thomas McLaughlin who conducted a peer review of Ms. Baez’ records and testified that the series of manipulations under anesthesia performed on Ms. Baez were not medically necessary. Dr. McLaughlin testified that Ms. Baez did not have surgery, and generally, most patients who receive manipulation under anesthesia are people who recently underwent surgery and cannot move a joint because of the increase of scar tissue (tr at pp. 18-19). Furthermore, Dr. McLaughlin testified that Ms. Baez’ records indicate she had an upper neuron region disorder and manipulation under anesthesia would be inappropriate for a person with such a disorder (tr at p. 15 lines 3-14). Dr. McLaughlin also testified that, in this case, Ms. Baez’ medical records reflected that Ms. Baez’ condition since the accident remained consistent in many respects, but showed improvement in others, and Plaintiff did not allow Ms. Baez to proceed with physical therapy to its full potential before performing manipulation under anesthesia (tr at p. 32 lines 1-10). He testified that some of Ms. Baez’ other doctors recommended further physical therapy, and none of them recommended manipulation under anesthesia (tr at p. 24 lines 12-20). Dr. McLaughlin also testified on direct examination that Ms. [*2]Baez’ initial consultation for manipulation was performed on the same date as her first manipulation under anesthesia (tr at p. 14 lines 5-16), but, on cross-examination, Dr. McLaughlin admitted that his statement on direct examination was incorrect and that the initial consultation for manipulation under anesthesia was actually five days before the first procedure (tr at pp. 25-26).

Specifically, Dr. McLaughlin testified that, Dr. Alex Khait, the doctor who performed the procedures on Ms. Baez, used the National Academy of Manipulation Under Anesthesia guidelines in deciding to perform the procedure, and that under the guidelines the procedure should be used when it would be the “most efficacious care for the person.” He disagreed that manipulation under anesthesia was the “most efficacious care” for Ms. Baez at the time it was done (tr at p. 18 lines 7-24).

Defendant also produced Christine Madigan, a Senior Litigation Representative for Defendant who testified that Defendant was billed for $3,572.91, and should have been instead been billed $1,462.47, based on the correct fee schedule (tr at p. 37 lines 21-25). Ms. Madigan testified which codes and modifiers should have been used and how often they should have been billed in calculating its invoice. During her testimony, Ms. Madigan testified that Defendant was charged three times in one day for manipulation under anesthesia to the cervical, thoracic and lumbar spines, even though the code should have been billed only once per day under the multiple procedure rule (tr at p. 47 lines 3-11).

Plaintiff presented an additional witness, chiropractor Dr. Robert Luca, to rebut Dr. McLaughlin’s testimony regarding the medical necessity of the procedures. Dr. Luca testified twenty-five points of contention with Dr. McLaughlin’s analysis. He testified that manipulation under anesthesia served to “restore the proper joint both mechanical and physiological” with stretching to remobilize the joint and “re-establish the normal or near normal resting length of the muscles tendons and ligaments as well as reactivate something called collateral inhibition physiological response” (tr at p. 54 lines 7-24). He testified that the procedure is not only reserved for patients who have undergone surgery. Among his reasons that the procedure was necessary in Ms. Baez’ case was that “the patient has responded favorably to conservative chiropractic medical treatment, but continued to experience chronic pain or persistent pain”; Ms. Baez had two to six weeks of care at least before the procedure, but suffered continuing pain that interfered with her lifestyle, and Ms. Baez refused other options for treatment (tr at p. 56 lines 3-23). He stated that these reasons were listed in the criteria set by the National Academy of Manipulation Under Anesthesia for a patient who would be an appropriate candidate for manipulation under anesthesia (tr at pp. 55-56). He also disagreed with Dr. McLaughlin and stated that, from his review of the medical records and the peer review, it appeared that Ms. Baez had “plateaued” and was “rebounding” into a “downward cycle,” even though her initial response to treatment was good (tr at p. 62 lines 10-25). He also thought that Ms. Baez received a sufficient course of treatment prior to manipulation under anesthesia (tr at p. 63 lines 6-13).

The issue here is whether Defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether Plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see New Horizon Surgical Ctr, LLC v Allstate Ins. Co., 52 Misc 3d 139[A][App Term 2d Dept 2016]; see also Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept 2012]).

“A no-fault insurer defending a denial based on lack of ‘medical necessity’ must at least show that the services were inconsistent with generally accepted medical/professional practice (Citywide Soc. Work & Psy. Serv., PLLC v Travelers Indem. Co., 3 Misc 3d 608, 609 [Civ Ct, Kings County 2004]). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Id. at 616). Unless there is reference to “generally accepted” medical/professional practice, conflicting expert testimony will only show a difference in professional medical judgment between two doctors (Id. at 612).

In this trial, the conflicting opinions of Dr. McLaughlin and Dr. Luca demonstrate a difference in professional medical judgment regarding whether manipulation under anesthesia was appropriate for the assignor in this case, in light of the standards set forth by the National Academy of Manipulation Under Anesthesia.

Defendant did not present sufficient evidence to establish that the manipulation under anesthesia was inconsistent with generally accepted professional practice considering Ms. Baez’ medical treatment and condition at the time. Therefore, the evidence was insufficient to carry defendant’s burden of proving that the services were not medically necessary.

However, based on the credible and uncontroverted testimony of Ms. Madigan, this court finds that Defendant has met its burden of showing that the appropriate amount for the invoices at issue was $1,462.47 instead of $3,572.91. Plaintiff submitted no evidence or testimony to rebut Ms. Madigan’s testimony.

Therefore, judgment is awarded in favor of Plaintiff. The Clerk is directed to enter judgment in favor of Plaintiff in the amount of $1,462.47, together with applicable statutory interest, attorney fees and costs.

This constitutes the Decision and Order of the Court.

Dated: December 13, 2017
Kings, New York
____________________
Mary V. Rosado, J.C.C.

Decided on July 31, 2017

Civil Court of the City of New York, Kings County