CV-9502-14/HU
C. Stephen Hackeling, J.

Petitioner moves, “pursuant to CPLR §7511 (b)(1)”, to vacate the award of Master Arbitrator Godson (petitioner’s Exhibit A), which upheld the arbitration award of arbitrator Thomas (petitioner’s Exhibit B).

Specifically, petitioner argues that the arbitrator “exceeded its power or so imperfectly executed it that a final and definite award on the subject matter submitted was not made”. Petitioner also requests a rehearing, [pursuant to CPLR §7511(d)] in the event the award is vacated, while respondent requests the award be confirmed. Upon denial of an application to vacate or modify an [*2]award, the Court is required automatically to confirm the award, eliminating the need for the party opposing such application to cross-move for confirmation. See, e.g., Blumenkopf v. Proskauer Rose, LLP, 2012, 95 AD3d 647 (N.Y.A.D. 1st Dept.); CPLR § 7511.

Subjection of this no-fault action to the arbitral process was semi-consensual, not compulsory. Under this process, the arbitrator’s award “is reviewed by the Master Arbitrator, under internal procedures promulgated or approved by the Superintendent of Insurance and such review is not restricted to the grounds of CPLR § 7511. The (subsequent) decision of the Master Arbitrator was then reviewed. Under Article 75 of the CPLR, the limited review grounds of CPLR §7511 do apply. “The rationale of the no-fault award . . . while a matter of primary concern to a Master Arbitrator, is of no moment to the Court and cannot be reviewed by it.” Seigel, NY Prac. § 601.

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CPLR § 7511 (b)(1) sets forth the exclusive grounds for vacating an arbitration award. Grounds to vacate under CPLR § 7511 (b)(1) are few and are narrowly applied. (See CPLR § 7511, Commentary C 7511:2). The specific list of grounds includes “corruption, fraud or misconduct . . . partiality of an arbitrator appointed as neutral, an arbitrator’s excess of power or imperfect execution such that a final an definite award. . . was not made (and) . . . failure to follow procedure [CPLR § 7511 (b)(1)]. Outside of the narrowly circumscribed exceptions . . . the Court lacks authority to review arbitration decisions, even where an arbitrator has made an error of law or has misapplied substantive law. Matter of Kowaleski v. New York State Dept. of Correctional Services, 16 NY3d 85 (NY 2010).

Errors of law and misapplication of substantive law generally do not suffice to permit the Court to disturb the arbitrator’s decision , Matter of Falzone v. New York Central Mutual Fire Ins. Co., 15 NY3d, 530 (NY 2010). Unless the parties’ agreement provides otherwise, an arbitrator need not apply the rules of evidence and is not bound by principles of substantive law . . . he may do justice as he sees it, applying his own sense of law and equity . . . to the facts as he finds them to be. Matter of Falzone v. New York Central Mutual Fire Ins. Co., supra. Even if an arbitrator “has made an error of law, Court’s generally may not disturb the arbitrator’s decision . . . Court’s are obligated to give deference to the decision of the arbitrator. . .” Matter of Falzone, supra. Accordingly, judicial review of arbitration awards is extremely limited. “An arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the Court’s should not assume the role of overseers to mold the award to conform to their sense of justice” (Matter of MBNA Am. Bank v. Karathanos, 65 AD3d 688, 883 NYS 2d 917, 918 (N.Y.A.D. 2nd Dept., 2009). “A Court may not usurp the arbitrator’s role by imposing its concept of a just and equitable result”. Matter of Local 345 of Retail Store Empls. Union v. Heinrich Motors, Inc.,

81 AD2d 1021 (N.Y.A.D., 4th Dept. 1981).

Manifest disregard of the law is not a basis [under CPLR § 7511 (b)] to vacate an arbitration award. Banc. of America Securities v. Knight, 4 Misc 3d 756 (Sup. Ct. NY County, 2004). “While irrationality’ is not explicitly set forth in CPLR § 7511(b) as a ground for vacating an award, the Court of Appeals recognizes it as a kind of adjunct of the excess of power provision”. Siegel, NY Prac. §602. An award that is contrary to settled law may be vacated, however same “will be upheld if there is any reasonable hypothesis to support it, such as where the issue is unsettled is subject to conflicting Court decisions”. RDK MEd., P.C. v. General Assur. Co., 8 Misc 3d 1025 (NY City Civ. Ct., 2005). A non mandatory arbitration award will be upheld unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation of the arbitrator’s powers . . . the arbitrator’s determination on issues of law, such as application of the statute of limitations as well as on issues of fact is conclusive, in absence of proof of fraud, corruption or other misconduct”. State Farm Auto Ins. Co. V. Harco Nat. Ins. Co., 29 Misc 3d 1229 (NY City Civ. Ct. 2010).

Upon review of the papers submitted including the arbitration transcript (provided by respondent), the Court finds no basis for disturbing the award. There was sufficient evidence in the record to support the award and a rational hypothesis to support the award, which found that the respondent established its defense [that provider, New Century Acupuncture, P.C. was not entitled to obtain payment for services by reason of violation of statutes regarding ownership and control of medical provider’s offices]. Petitioner has not established, as it contends, the grounds alleged in its Notice of Petition that “the arbitrator exceeded his power or so imperfectly executed it (such that) . . . a final and definite award . . . was not made”, nor has it shown entitlement for vacatur of the award for any of the specific grounds contained in CPLR § 7511.

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The Court specifically rejects petitioner’s argument that the arbitrator improperly applied the “preponderance” standard of proof to the respondent’s defense of improper licensing/control. Petitioner argues that the higher “clear and convincing” standard of proof should have been applied. “The essence of this defense (is that ) petitioner is ineligible to recover no-fault benefits due to petitioner’s failure to comply with New York State’s licensing requirements) . . . based on (petitioner’s) failure as a professional corporation to be owned and controlled only by licensed professionals . . .” Carothers v. Progressive Ins. Co., 42 Misc 3d 30 (App. Term, 2d, 11th & 13th Jud. Dists., 2013). The fact finder focuses on factors which determine whether the provider’s company is actually owned, co-owned or controlled by unlicensed individuals. 11 NYCRR 65 3.16(a)(12) provides that a health care provider is not eligible for reimbursement under section 1507 of the BCL if it fails to meet any applicable licensing requirement, whether at the time of its incorporation or thereafter. Although this defense is called “fraudulent incorporation”, it “truly poses [*3]an issue of the provider’s “ineligibility” to receive reimbursement, rather than fraud”. Tahir v. Progressive Cas. Ins. Co., 12 Misc 3d 657, 663, (NY City Civ. Ct. 2006). “While the word fraud is commonly used todescribe a Mallela defense, Mallela has nothing to do with common law fraud . . . In reality Mallela is akin to piercing the corporate veil”. Concourse Chiropractic, PLLC v. Sate Farm Ins. Co., 35 Misc 3d 1213 (Dist. Ct., Nassau, 2012).

In V.S. Medical Services, P.C., 11 Misc 3d 334 (NY City Civ. Ct. 2006), Judge Bluth rejected the application of the clear and convincing evidence standard to the respondent’s defense of lack of coverage/staged accident, stating that the respondent “need only come forward with evidence that rebuts (the) presumption of coverage . . . that is once the petitioner has made out its prima facie case, the burden of production ( also called the burden of going forward) on the issue of coverage falls upon the respondent and the respondent must demonstrate that it has a founded basis for believing that the alleged collision was intentionally caused. The burden of persuasion, however, remains on the petitioner who must prove its case by a fair preponderance of credible evidence . . . How much evidence must respondent produce to satisfy its burden of production? There is no magic formula, but it clearly must be enough to rebut the presumption that the injuries were caused by a covered accident, that is, a true accident . . . After all the evidence has been presented, the Court must decide whether the evidence of coverage preponderates in favor of the petitioner, the party who bears the burden of persuasion. V.S. Medical Services, P.C., supra. In Universal Open MRI of the Bronx, P.C. v. State Farm Mut. Auto Ins., 12 Misc 3d 1151 (A), (NY City Civ. Ct., 2006), Judge Velasquez also applied the preponderance of the evidence standard of proof to respondent’s evidence of a staged accident, and stated that although “our Appellate Courts commonly invoke the term “fraud” when discussing the defense of “staged accident” (which is actually a defense of lack of coverage), they are not necessarily discussing fraud.

The petitioner also argues that M.A. Godson “made his own factual determination regarding respondent’s EUO no show defense ” and “that M.A. Godson decided the EUO issue de novo”, as this issue was “never decided in the first instance” by arbitrator Thomas. Arbitrator Thomas’ report made factual findings that “respondent . . . sent the applicant two requests to appear for an EUO. . . and that respondent failed to appear thereat”. The arbitrator also discussed the timeliness of respondent’s EUO requests. The arbitration report failed to explicitly state that her award was based on respondent’s failure to appear at the EUO’s. Rather, her determination explicitly stated that respondent sufficiently established petitioner’s ineligibility to receive reimbursement by reason of petitioner’s fraudulent incorporation. Said report denied plaintiff’s claim in its entirety. The arbitrator, found that the respondent proved its complete defense justifying her award which denied petitioner’s claim entirely on said ground alone. It may have been clearer had the arbitrator explicitly stated that failure to attend the EUO’s was the second ground on which her report was based, however, it was unnecessary. The Court is of the opinion that this conclusion on the part of the arbitrator is implicit in her report and that the Master Arbitrator properly reviewed thethis issue but did not determine it factually, de novo.

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The Master Arbitrator’s award states one of the two issues it was reviewing was whether the no-fault arbitrator’s findings justified a conclusion that respondent properly denied applicant’s claims on the basis of failure to attend two EUO’s. The Master Arbitrator clearly found that the failure to attend the EUO’s was an appropriate reason for the no-fault arbitrator to have sustained the respondent’s denials. The Master Arbitrator also affirmed the arbitrator’s report in its entirety; finding that the arbitrator did not act in a arbitrary, capricious or irrational manner or contrary to law in denying the claim on the grounds of petitioners’ fraudulent incorporation.

In any event, even had the arbitrator held that respondent appeared at the EUO’s, and had it stated this in its report, and had the Master Arbitrator upheld such a finding, the ultimate result is unchanged, as the respondent prevailed entirely its fraudulent incorporation defense.

Petitioner’s final argument, regarding collateral estoppel was withdrawn by petitioner, at a conference with both counsel and the jurist present. Petitioner’s motion, based on this and other grounds, is denied.

Accordingly, the petition is denied. (CPLR §7511 (e)). The award is confirmed. The respondent may enter judgment pursuant to CPLR § 7514. Submit judgment.

________________________________

J.D.C.

Dated: June 18, 2015

4

[*1]

District Court of Suffolk County, Third District, September 30, 2013

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Garden City (Edward A. Cespedes of counsel), for plaintiff. Abrams, Cohen & Associates, New York City (David P. Turchi of counsel), for defendant.

{**41 Misc 3d at 984} OPINION OF THE COURT

C. Stephen Hackeling, J.

The above-captioned medical service provider plaintiff brings this action pursuant to the provisions of section 5106 of the Insurance Law to recover $1,876.76 of “no-fault” claim benefits after the defendant timely denied same upon the grounds that the claim was not “properly rated” and that the fees were in excess of the workers’ compensation fee [*2]schedule.

The parties stipulated to a framed issue trial and ask the court to direct judgment resolving the issue of whether paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule, Physical Medicine (2010) limits claims reimbursement to 8.0 units (codes) per day for each provider individually or for all provider claims cumulatively. It is the defendant insurance company’s position that the provisions of 11 NYCRR 65-3.15 require the court to interpret paragraph 11 as an “exhaustion” regulation, similar to the $50,000 claim limitation contained therein, which acts as a bar to all subsequent claimants. The plaintiff’s contention is that the 8-unit rule is applied per claim and is not a bar to subsequent claimants.

The undisputed facts are that the plaintiff medical provider timely submitted claims for assorted code procedures constituting 10 units. It is the defendant’s undisputed contention that prior to the receipt of the plaintiff’s claim (and or verification responses) that the defendant already had reimbursed other providers for 8.0 units of services and it was therefore entitled to deny the plaintiff’s claim.

11 NYCRR 65-3.15 provides as follows:

“Computation of basic economic loss

“When claims aggregate to more than $50,000, payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefor were made to the insurer prior to the exhaustion of the $50,000. If the insurer pays the $50,000 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims. If the insurer receives claims of a number of providers of services, at the same time,{**41 Misc 3d at 985} the payments shall be made in the order of rendition of services.”

Paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule, Physical Medicine (2010) provides: “Multiple Physical Medicine Procedures and Modalities: When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less. The following codes represent the physical medicine procedures and modalities subject to this rule.”

The parties advised the court that the proffered issue is a matter of first impression and that no reported precedent exists which interprets paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule, Physical Medicine (2010). The court’s independent research corroborates this fact.

It is the court’s determination that the claim benefit exhaustion concept described [*3]in regulation 11 NYCRR 65-3.15 is inapplicable to the excessive fee limitations imposed by paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule. They are distinct and separate regulatory mechanisms which make no reference to each other. The section 65-3.15 $50,000 policy limit is a “non-waivable” defense which need not be raised in the defendant’s denial of claim. (See New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2d Dept 2004]; Westchester Med. Ctr. v Allstate Ins. Co., 17 Misc 3d 1134[A], 2007 NY Slip Op 52257[U] [Sup Ct, Nassau County 2007].) The paragraph 11 excessive fee schedule defense is waivable and must be timely asserted in its claim denial or it is precluded from being thereafter interposed. (See Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005], citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

The purpose of the workers’ compensation medical fee schedule is to prevent “excessive billing” by each individual provider and not to create an “exhaustion” of benefits competition between claimants as is clearly the intent of section 65-3.15. The fee schedule is a guideline on how to properly fill out and submit a claim. Such a finding is consistent with the Court of Appeals’ direction to interpret “no-fault” regulations in such a manner as to not frustrate the legislative intent of requiring prompt payment of benefits. (See Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007], citing Matter of Medical Socy. {**41 Misc 3d at 986}of State of N.Y. v Serio, 100 NY2d 854 [2003].) Paragraph 11 does not indicate that it regulates benefits for “all” claims on any given day.

The regulating authority could have easily included the phrase “for all claimants,” if that was its intent. The interpretation of regulations must be consistent with its authorizing statute. (See Matter of Luxenberg v Stichman, 208 Misc 706 [Sup Ct, Bronx County 1955], citing Lightbody v Russell, 293 NY 492 [1944]; see also generally Boreali v Axelrod, 71 NY2d 1 [1987].)

Accordingly, the court enters judgment for the plaintiff allowing reimbursement for 8 of its claims’ 10 billing units, in the sum of $1,876.76 plus appropriate statutory interest, attorneys fees and costs.

District Court of Suffolk County, Third District

HUC 10836-11

C. Stephen Hackeling, J.

Upon the following papers numbered 1 to 21 read on this motion by defendant to dismiss action by Notice of Motion / Order to Show Cause and supporting papers 1,2,14 ; Notice of Cross Motion and supporting papers 10,11,14 ; Answering Affidavits and supporting papers 15,17 ; Replying Affidavits and supporting

papers 18,21 ; Filed papers; Other exhibits: 3-13; 16; 19-20 ; and after hearing counsel in support of and opposed to the motion)

it is,

ORDERED that the motion by defendant for dismissal of plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (7) is granted. The Clerk of the Court is hereby directed to enter judgment accordingly.

This is an action by plaintiff for payment of health services allegedly rendered to plaintiff’s assignor from an automobile accident on January 8, 2007 in the sum of $492.84, in addition to interest of 2% compounded per month pursuant to 11 NYCRR §65.15(g) and attorney fees of 20% of the overdue claim with a maximum of $850.00 and a minimum of $80.00 pursuant to 11 NYCRR §65.4.6(e), under New York’s No-Fault Law.

Defendant, in a pre-answer motion, now moves for dismissal of the action, contending that plaintiff violated a policy condition for verification of the claim, as plaintiff never [*2]appeared at a Examination Under Oath (“EUO”) on March 26, 2007 and the adjourned date of April 16, 2007, dates requested by defendant, and plaintiff failed to provide additional verification of the claim, as requested by defendant.

Defendant asserts it received a proof of claim from plaintiff within the statutory 45 days required from the date that medical services were rendered. Thereafter, defendant asserts it requested verification of the claim. Since a response from plaintiff was not received within the 30 day statutory period, defendant sent a follow-up second statutory request for verification. To date, plaintiff has not provided the requested verification.

In support of its motion to dismiss, defendant contends it was justified in seeking EUOs and further verification of plaintiff’s claims, based upon an investigation it commenced of plaintiff for improper organization, management and billing operations. Defendant submits, inter alia, a copy of the pleadings, the affidavits of Sibrena Johnson, an employee in the Special Investigative Unit, Christopher Howard, an investigator in the Special Investigative Unit, Denise Rafalski, a Claim Support Services Supervisor, and an affidavit from Michael Bellamy, the Administrative Services Mailroom Services Assistant for defendant, and an attorney’s affirmation from Joshua E. Mackey, Esq.

In opposition to defendant’s motion, plaintiff contends that

defendant was required to forward statutory timely verification requests. Plaintiff contends the defendant’s submitted proof is insufficient to establish a timely request.Furthermore, defendant contends the request to attend the EUO’s contained a document demand requiring plaintiff’s production, seven days prior to the scheduled EUO’s. Defendant contends the document demand included, inter alia, a demand for tax returns and general ledgers, and proof of ownership of the professional corporation, all of which were improper demands outside the scope of a verification request to substantiate a $492.84 claim. Plaintiff further asserts the request indicated the claim would not be paid if the requested documents were not provided. Therefore, plaintiff claims there was no point in going to the EUO’s, as defendant had no intention of paying the claim without receipt of the documents which were improperly requested.

Defendant replies it properly denied the claim as plaintiff never complied with the outstanding verification requests.

No-fault regulations mandate that a claim for health service expenses must be submitted by written proof of claim to the insurer, no later than 45 days after the date that health services were rendered (see 11 NYCRR §65-2.4[c]). An insurer can then issue payment or deny the claim (see 11 NYCRR §65.15). After receipt of the written proof of claim, a no-fault claim is overdue if not paid or denied by the insurer within 30 calendar days (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1]). An [*3]insurer may toll the 30 day period by requesting additional verification of the claim within 15 days from its receipt of the claim (see 11 NYCRR 65.15 [d][1][e]; NY & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2nd Dept 2006]). If the insurer has not received a verification from the plaintiff within 30 days of the initial request, the insurer may send a follow-up verification request within 10 calendar days (see 11 NYCRR 65.15[e][2]).

An appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay a no-fault claim (see 11 NYCRR §65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2nd Dept 2006]; Richmond Radiology, P.C. v American Transit Ins. Co., 33 Misc 3d 135[A][App. Term 2nd, 11th and 13th Jud. Dists. 2011]; Five Boro Psychological Services, P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A][App. Term 2nd, 11th and 13th Jud. Dists. 2010; Dynamic Med. Imaging, P.C. v State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 [D. Ct. Nassau Co. 2010]).

A verification demand by an insurer will extend the 30 day

period until such time as the requested verification is received (see 11 NYCRR §65.15[g][1][I]; Hosp. For Joint Diseases v Elrac, Inc., 11 AD3d 432 [2nd Dept 2004]; Westchester County. Med. Ctr. v New York Cent. Mut. Fire Ins., 262 AD2d 553 [2nd Dept 1999]). Where a requested verification is not provided an insurer is not required to pay or deny the claim (see 11 NYCRR §65-3.8; NY & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2nd Dept 2004]).

Here, the Court determines that defendant’s papers in support of dismissal demonstrate that the EUO notices and verification requests were sent twice to plaintiff’s address pursuant to its standard office practice and procedure and were sufficient to establish timely notification of defendant’s EUO and verification requests (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123, 1124 [2nd Dept 2008]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Mis3d 140[A][App. Term, 2nd, 11th & 13th Jud Dists 2010]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A][App. Term, 9th & 10th Jud. Dists. 2007]). It is undisputed that plaintiff failed to respond in any manner to defendant’s EUO and verification requests. The affirmation of defendant’s EUO counsel demonstrates that EUOs were noticed and scheduled to be conducted at the office of defendant’s counsel on March 26, 2007 and the adjourned date of April 16, 2007, none of which were attended by a representative of plaintiff (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra; Five Boro Psychological Services, P.C. v Progressive Northeastern Ins. Co., supra). In addition, defendant demonstrated the timely mailing of the NF-10 denial of claims forms in accordance with defendant’s standard office practice and procedure (see St. Vincent’s Hosp. of Richmond v GEICO, supra at 1124). Plaintiff’s inaction to [*4]defendant’s timely notifications is fatal to its causes of action for alleged services rendered (see Crescent Radiology, PLLC., as Assignee of Spiros Arbiros v American Transit Ins Co., 31 Misc 3d 134[A][App Term, 9th & 10th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., supra).

Plaintiffs Must Make Written Objection To ImproperVerification Request To Avoid Denial Toll.

Nonetheless, defendant’s request for the production of documents and information seven days prior to the EUO is troubling to the Court. The request, as plaintiff contends, is clearly outside the scope of permissible information. Lower Courts have found this type of EUO request for documents and information to be “palpably improper” (see Concourse Chiropractic, PLLC., v State Farm Mutual Ins. Co., 35 Misc 3d 1213[A][D. Ct. of Nassau Co. 2012]; Dynamic Med. Imaging, P.C. v State Farm Mutual Automobile Ins. Co., supra at 285). “The regulations do not give the insurer the right to ask an assignee to produce documents relating to the corporate structure or finances of a medical provider” (see 11 NYCRR 65-3.5[a]; Dynamic Med. Imaging, P.C. v State Farm Mutual Automobile Ins. Co., supra at 283. “The regulations only permit the insurer to obtain written information to verify the claim” (Id. at 283; see also 11 NYCRR 65-3.5[b]). “Nothing in the no-fault regulations permits an insurer to request an assignee to produce corporate organizational and financial documents a week in advance of an EUO” (Id. at 283). Disclosure of tax returns “is disfavored since income tax returns contain confidential and private information” (Id. at 283; see also Walter Carl, Inc. v Wood, 161 AD2d 704, 705 [2nd Dept 1990]). A party seeking the production of tax returns must make a strong showing of necessity and an inability to obtain tax returns from any other source (see Abbene v Griffin, 208 AD2d 483 [2nd Dept 1994]).

However it is the plaintiff’s reaction to the “palpably improper” document demand of defendant’s EUO request that vitiates its causes of action. Here, the plaintiff did nothing and did not contact the defendant’s counsel to protest the document request.There is no provision in the no-fault regulations which permit a claimant or an insurance company to ignore communications from each other “without risking its chance to prevail in the matter” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., supra at *2; Media Neurology, P.C. v Countrywide Ins. Co., 21 Misc 3d 1101[A][NY City Civ. Ct. 2008]; All Health Medical Care, P.C. v Gov. Employees Ins. Co., 2 Misc 3d 907 [NY City Civ. Ct. 2004]); see Westchester Cty. Med. Center v NY Central Mutual Fire Ins. Co., 262 AD2d 553, 555 [2nd Dept 1999]. [*5]

It is well established that the No-Fault statute is designed

to ensure prompt resolution of claims by accident victims. “Any questions concerning a communication should be addressed by further communication, not inaction” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., citing Dilon Medical Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927 [NY City Civ. Ct. 2005]). By failing to respond in some manner to defendant’s verification request, “plaintiff undermined the purpose of the No-Fault statute, which is to ensure the prompt resolution of claims” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., supra at *2).It is incumbent upon the plaintiff to mail a “Malella Discovery Objection” letter in response to such an improper verification request so as to prevent a “denial toll” and run the thirty (30) days to pay time period. Island Chirop. Testing, P.C. v. nationwide Ins. Co., 2012 NY Slip Op 51001 (u). As an objection was not interposed, the defendant’s 30 day period to pay continuing to be tolled, requiring dismissal of this complaint as premature.

Plaintiffs Must Appear Or Raise Written

Objection to EUO Demand

The plaintiff’s assignee also did not show up at either date for the EUO’s. Again, there was no protest of the fact that the EUO’s were scheduled at the inconvenient location of Poughkeepsie, New York, a few hours upstate from plaintiff’s office in Nassau County. Nor did the plaintiff request reimbursement for time and travel expenses “thereby preserving its defenses concerning the EUO notices” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., 27 Misc 3d 1228[A][NY City Civ. Ct. 2010]).

The Court further determines, that by not appearing at the properly noticed EUO, plaintiff did not fulfill a condition precedent which would have required defendant to pay its no-fault claim (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra at 722).Even if the plaintiff timely mailed a “Malella Discovery Objection”, it is still incumbent for the assignor to appear at the EUO as a precondition to commencing a lawsuit to recover upon the claim.

Accordingly, the motion by defendant to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (7) is granted. Plaintiff’s complaint is hereby dismissed.

Dated: June 15, 2012Hon. C. Stephen Hackeling

J.D.C.

District Court of Suffolk County, Third District

HUC 2715-11

C. Stephen Hackeling, J.

The defendant’s application for an order dismissing the above captioned action as premature (upon the grounds that plaintiff did not respond to defendant’s verification and follow-up verification requests), is denied. The plaintiff’s cross-motion for summary judgment is granted. The defendant’s affidavits have not adequately demonstrated that defendant timely sent verification requests and follow-up verification requests to the plaintiff. The Court notes that the inadmissable affidavit of Eduardo Morales Carr (improperly notarized) who is positioned in Syracuse, states that he “generated and issued” such requests on certain dates. However, further affidavits indicate that such requests are electronically sent to the centralized administrative team in Harrisburg, Pennsylvania. An insufficient explanation is offered how the letters generated and properly addressed, what procedures are in place to safeguard that all generated requests are actually mailed and to the proper addresses. Further, the affidavit of James R. Snyder, Jr. attempts to describe what occurs in the mailroom, and fails to address postage issues. In sum, the affidavit of Eduardo Morales Carr does not establish by personal knowledge, his mailing of timely requests on dates certain, nor do the affidavits of the defendant, taken as a whole, contain [*2]a sufficiently detailed description of the standard office mailing procedures which give rise to the presumption of mailing. The submitted proof fails to meet even the relaxed standard of proof of mailing established by the Second Department Appellate Division. See, St. Vincents Hospital of Richmond v. Geico, 50 AD3d 1123 (N.Y.AD2d Dept. 2008).

Mallela Discovery As Part Of A Verification Of Claim

Even if defendant’s affidavits could be corrected or evidence introduced at trial to demonstrate that its verification letters were timely mailed; the defendant’s verification requests, seeking inter alia, copies of “sale of shares or transfer of ownership (and) lease agreements” are impermissible and improper requests, and cannot support the finding of a denial “toll” which would permit an award of summary judgment to defendant. Inasmuch as the defense of “fraudulent incorporation” is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial. The defendant may request relevant written documents pertaining to same as part of post joinder written discovery, or may commence a declaratory judgment action seeking to declare the medical provider ineligible to recover benefits. See, Lexington Acupuncture, P.C. v. General Assurance Co., 2012 WL661685 (NY 2nd Dept. App.Term 11th & 13th Dists. 2012), citing to Midwood Acupuncture P.C. v. State Farm Ins. Co., 14 Misc 3d 131(A) (2d Dept. App. Term 11th & 13th Dists. 2007). Requesting this type of information by way of claim verification is abusive of the no-fault verification process. See, Concourse Chiropractic, PLLC v. State Farm Mut. Ins. Co., 2012 NY Slip Op 50676 (U) 35 Misc 3d 1213 (A) (Nassau Co.Dist. Ct, 2012);involving document discovery as part of an “EUO” demand. Tarnoff Chiropractic, PC v. Geico Ins. Co., 35 Misc 3d 1213(A) (Nassau Co. Dist. Ct. 2012); Dynamic Med. Imaging, PC v. State Farm Mut. Auto Ins. Co., 29 Misc 3d 278 (Nassau Co. Dist. Ct. 2010). It is also contrary to the stated policy of the no-fault legislation which is “to insure prompt payment of medical claims for medical treatment provided to people injured in automobile accidents, regardless of fault”. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 566 (NY 2008).

The affidavit of Eduardo Morales Carr, the claims specialist who decided to seek the additional verification in question, provides no good faith basis for seeking corporate status documents. Additionally, the affidavit of Linda Manning does not establish that the defendant had “good cause” to seek fraudulent incorporation documentation at the time the verification requests were generated. Permitting an insurer to obtain written documents such as tax returns, incorporation agreements or leases regarding a potential fraudulent incorporation “Malella” defense as part of the verification process defeats the stated policy and purpose of the no-fault law and carries with it the potential for abuse. See, State Farm Mutual Ins. Co. v. Malella, 4 NY3d 320 (NY 2003) which establishes the parameters of challenging a no-fault claim premised [*3]upon violations of NY Bus. Corp. Law Secs. 1507 and 1508 and NY Educ. Law Sec 6507 (4)(c) and NYCRR 65-3.16 (a)(12). The defendant should not be able to defeat no-fault claims by making onerous and improper non claim related document demands by way of verification.

The Court concurs with its sister Nassau County District Court determinations that “verification” demands as defined by 11NYCRR Sec. 65-3.5(c) are limited to “verifying the claim”. Concourse Chiropractic v. State Farm Ins. Co. cite supra., Judge Hirsch in the Concourse and Dynamic Med. Imaging decisions determined that couching Malella defense discovery in the form of an examination under oath is insufficient to invoke the “verification toll” which would require dismissal of the insurer complaint as premature. Extending this reasoning, Mallela discovery is also inappropriate, even in the absence of an EUO demand, or even if it only involves document production.

Plaintiff’s cross-motion for summary judgment is granted for the amount demanded in the complaint. It is undisputed that defendant received plaintiff’s claims (see affirmation of Frank Marotta, Esq.; exhibits affixed to defendant’s motion papers, affidavit of Eduardo Morales Carr) and has not issued a denial. The verification requests herein did not toll defendant’s 30 day time to deny or pay the claims, as the plaintiff timely responded to the defendant’s request objecting to the Malella discovery request and advising that it was not in possession of said documentation. Such a response meets the requirements under the Insurance Regulations. See 11 N.Y.C.R.R. Sec. 65.15, so as to run the 30 day claim pay/deny time period.

Submit judgment on twenty (20) days notice.

_______________________

J.D.C.

Dated: _________________

[*1]

District Court of Suffolk County, Third District, December 19, 2011

APPEARANCES OF COUNSEL

Law Offices of Gabriel & Shapiro, LLC, Wantagh (Jason Moroff of counsel), for plaintiff. Mura & Storm, PLLC, Buffalo (Scott D. Mancuso of counsel), for defendant.

{**35 Misc 3d at 162} OPINION OF THE COURT

C. Stephen Hackeling, J.

Preferred Mutual Insurance Company (hereafter Preferred) makes an application to this court seeking either a venue transfer pursuant to CPLR 510 (3) or dismissal of the plaintiff, Scott Croce, D.C.’s (hereafter Croce) complaint pursuant to CPLR 327 (a). For the reasons hereafter stated, the application to dismiss this complaint is granted with leave to recommence same in an alternative forum subject to the provisions of CPLR 205 (a).

The Facts

In advancing its “forum non conveniens” dismissal motion, Preferred asserts that the undisputed relevant facts are that Preferred issued the subject no-fault automobile insurance policy in Buffalo, New York to a resident of Buffalo, New York. The subject accident occurred in Buffalo, New York. The injured{**35 Misc 3d at 163} party resided in Buffalo, New York, and following the accident, the injured party was treated in Buffalo, New York. The injured party was examined via an independent medical examination in Williamsville, New York (a Buffalo suburb). The plaintiff treated the injured party in Buffalo, New York. Preferred denied the bills at issue by sending denials to the plaintiff at a Buffalo, New York address, and such denials were based on the opinion of a medical doctor located in Buffalo, New York. Croce commenced this action pursuant to UDCA 404 as Preferred maintains independent insurance business agents who conduct business on its behalf within the District. Preferred does not maintain a formal business office in the District and was served with the summons care of the New York State Insurance Department at 25 Beaver Street, New York, New York.

Issues Presented

Does the Suffolk County District Court have the power to transfer or dismiss an action between two New York State residents because it may be better litigated at a city court in Buffalo, New York?

Discussion

Preferred’s application is two pronged and seeks either dismissal pursuant to CPLR 327 or a transfer of venue pursuant to CPLR 510 to Erie County, New York.^[FN*] The court will deal summarily with the CPLR 510 transfer request and deny same as it is statutorily prohibited from ordering a transfer outside its geographic jurisdiction by UDCA 306. (See Barco Auto Leasing Corp. v Wolf, 179 Misc 2d 815 [App Term, 2d Dept, 9th & 10th Dists 1999]; Personnel Career Servs. v Pizza Huts of Dutchess County, 149 Misc 2d 729 [App Term, 1st Dept 1991].) Section 101 of the CPLR expressly subordinates its general provisions to a conflicting alternative specific statute as contained in the UDCA. (See A&S Med. v ELRAC, Inc., 184 Misc 2d 257 [Civ Ct, Queens County 2000]; Neurologic Servs. v American Tr. Ins. Co., 183 Misc 2d 496 [Civ Ct, Bronx County 1999].) Even{**35 Misc 3d at 164} absent a conflict with the UDCA, section 510 contemplates transfers within a court’s geographic jurisdiction. Erie County is outside this court’s territorial jurisdiction.

Forum Non Conveniens

The request for the invocation of the doctrine of forum non conveniens (hereafter FNC) is more problematic. As identified in several legal treatises, there presently exists split authority as to whether CPLR 327 FNC is available to inferior courts of limited jurisdiction such as City Civil Court and the various District Courts. (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, CCA 301, at 100; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, UDCA 202, at 463; Siegel, NY Prac § 28 [4th ed]; Siegel, Civil Court Forum non Conveniens, 55 Siegel Prac Rev 3 [1997]; 1 Carmody-Wait 2d, NY Prac § 2:64, at 112; Haig, Commercial Litigation in NY Courts 3d § 3:27 [1 West’s NY Prac Series 2010]; see also Idrobo v Martin, 2003 NY Slip Op 51387[U] [2003].)

Judge Ritholtz of New York City Civil Court has opined that the applicability of CPLR 327 to inferior courts is questionable as its purview has historically been limited to Supreme Court practice; “enabling it to refuse to entertain out-of-State actions, involving nonresidents.” (Suffolk Chiropractic Ctr. v GEICO Ins. Co., 171 Misc 2d 855, 857 [Civ Ct, Queens County 1997]; see also generally Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333 [1968].) This reasoning is consistent with the common law which existed prior to 1972.

FNC is a common-law doctrine which until 1952 allowed New York courts to abstain from entertaining personal injury cases involving nonresidents. (Bata v Bata, 304 NY 51 [1952].) As a result of the Bata decision, the Court of Appeals determined it had the authority and inclination to change the FNC common-law doctrine to allow for its utilization in contract and other cases. The one limiting prohibition to this equitable doctrine was the inflexible rule that FNC could not be invoked if a party was a New York resident. The Court of Appeals again amended and expanded the doctrine in January 1972 by opining that a party’s New York residency was not an absolute bar to FNC invocation (i.e., it was to be only one of many [*2]considerations). (Silver v Great Am. Ins. Co., 29 NY2d 356 [1972].) It is undisputed that the common law, including the Bata and Silver modifications, was enacted into statutory form in 1972 via the enactment of CPLR 327 which provides:{**35 Misc 3d at 165}

“(a) When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.”

CPLR 327 was intended by the Legislature to be only a codification of the Silver rule, and was confirmatory in nature of the common law and not innovative. (Siegel, NY Prac § 28 [4th ed].) The complication presented is the fact that CPLR 327 utilizes the generic word “court,” without limitation, and indicates that this court does have the authority to dismiss the subject action. The dilemma presented is how does this court reconcile this inconsistent language with the Legislature’s intention to only codify, not amend, the common law which was utilized previously only by New York’s original jurisdiction Supreme Courts.

In contrast to the line of reasoning that FNC is not available to inferior courts is the line of cases first reported in Suriano v Hosie, wherein courts have determined that FNC is available to District Courts. (59 Misc 2d 973 [Nassau Dist Ct 1969]; Roseman v McAvoy, 92 Misc 2d 1063 [Civ Ct, NY County 1978]; A&S Med. v ELRAC, Inc., 184 Misc 2d 257 [Civ Ct, Queens County 2000].) This court concurs that the Legislature did not intend to expand the common law when it enacted the 1972 codification.

The determinative fact herein is exactly what was the FNC common law in 1972? Judge Kelly in the A&S decision correctly points out that the Court of Appeals, in a one-sentence decision (decided June 1, 1972), reversed the First Department, Appellate Division (which had reversed a City Court) and did not challenge the use of FNC in sustaining a Civil County Court dismissal. (See Rafter v Newark Ins. Co., 30 NY2d 819 [1972].) While inconsistent with the pre-1972 common law, it appears that the Court of Appeals, several months prior to section 327’s statutory enactment, again modified and expanded it, much as the High Court did in its Bata (1952) and Silver (1972) decisions. All three of these common-law amendments were thereafter codified into section 327. The Legislature in enacting statutes is presumed to be acquainted with the common law. (Transit Commn. v Long Is. R.R. Co., 253 NY 345 [1930].) Statutes in derogation of the common law are strictly construed{**35 Misc 3d at 166} against change. (McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a]; see generally Bertles v Nunan, 92 NY 152 [1883]; Dollar Dry Dock Bank v Piping Rock Bldrs., 181 AD2d 709 [2d Dept 1992].) As such, the Legislature’s use of the generic word “court” in section 327 accurately codified the then existing 1972 FNC common law, which for several months had included inferior courts.

Having determined that the District Court has the discretionary authority to invoke the FNC doctrine; the court now turns to its appropriateness. The test to be applied is based in equity, is multipronged and is laid out in the Court of Appeals Bata and Silver decisions, as well [*3]as its decisions in Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense (Varig) (22 NY2d 333 [1968]); and Martin v Mieth (35 NY2d 414 [1974]). In light of the undisputed facts presented, the court can think of no case under which a FNC dismissal by an inferior court would be more appropriate. Every single contact with this insurance dispute involves residents and actions occurring in Buffalo, New York. To not invoke FNC under these circumstances would effectively vitiate its purpose and existence.

Accordingly, Croce’s complaint is dismissed subject to the six months tolling provisions of CPLR 205.

Footnotes

Footnote *: The court notes that, although “lack of personam jurisdiction” is asserted as a affirmative defense in its answer, the defendant has not moved to challenge plaintiff’s assertion of long-arm presence jurisdiction in its present application. Subject to the possibility that this defense may have been waived, this court seriously questions the existence of personam jurisdiction. (See generally Diagnostic Rehab., Medicine Serv., P.C. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U] [Civ Ct, Kings County 2003]; Mingmen Acupuncture Servs. v American Tr. Ins. Co., 183 Misc 2d 270 [Civ Ct, Bronx County 1999].)

District Court of Suffolk County, Third District

HUC 1503/2007

Rapuzzi, Palumbo & Rosenberger, P.C.

Jason Moroff, Esq.

Attorney for the Plaintiff

3361 Park Avenue

Wantagh, New York 11793

Bruno, Gerbino & Soriano, Llp

Adam D. Levine, Esq.

Attorney for the Defendant

445 broad Hollow road, Suite 220

Melville, New York 11747

C. Stephen Hackeling, J.

At a trial of the above captioned medical service provider “no-fault” action conducted June 17, 2010, neither side presented witnesses. Instead the plaintiff offered into evidence a Notice to Admit dated May 12, 2010 which asked the defendant to admit it received the attached claim and assignment for no-fault medical provider services for $3,485.00, that no verification of information was requested, and that payment was not made thereon. Thereafter, the plaintiff rested asserting the establishment of a prima facie cause of action pursuant to NY Ins. Law § 5106(a). The defendant asserts that the plaintiff cannot avail itself of the statutory NY CPLR 3123 admissions as it did respond to same. The defendant’s response to the Notice to Admit contained the same verbatim response to each of the forty questions which reads: “Defendant can [*2]neither admit nor deny this matter as it pertains to a material issue of fact that can only be resolved at the time of trial, and is therefore not the proper subject of a Notice to Admit.” It is the defendant’s contention that it need not produce a witness to establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

It is noted that the Appellate Courts are split on the availability of Notices to Admit to establish a medical provider no fault insurance claim. This court has previously decided that the Notice to Admit could be used to establish a NY Ins. Law § 5106(a) prima facie cause of action. Advanced Tempromandibular Disorder & Dental Surgery v. Progressive Northeastern Ins. Co., 27 Misc 3d 436 (Suf. Co. Dist. Ct. 2010) 896 NYS2d 830. Subsequent to that decision, the Appellate term of the Supreme Court, First Department has allowed no fault plaintiffs to establish their prima facie case via Sec. 3123 admissions and expressly found that facts such as receipt of a claim and the failure to respond or pay within 30 days were not legal conclusions which constitute inappropriate requests to admit. Central Nassau Diagnostic Imaging, P.C. v. Geico., 2010 NY Slip Op 20244 (App. Term, 1st Dept., 2010).

The plaintiff in this action seeks to push the envelope one step further by asking for a finding that a written timely inappropriate response similarly constitutes a statutory admission sufficient to establish a prima facie case without the need to call a witness.

The Notice to Admit is a procedural device used to narrow the disputed issues to be addressed at trial. See Hodes v. City of New York I, 165 AD2d 168, 566 NYS2d 611 (App. Div. 1st Dept. 1991). If a party declines to do anything in response to the Notice to Admit, the requested admissions are deemed admitted. The proper response as per CPLR Sec. 3123 is either an admission, a denial, or ” if the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim..”^[FN1] Unlike requests for written interrogatories where a party is permitted to object in lieu of responding (CPLR 3133 (a)), such a procedure is not authorized with a Notice to Admit. See Webb v. Tire and Brake Distributor, Inc., 13 AD3d 835, 786 NYS2d 636 (NYAD 3rd Dept. 2004), cited in Prime Psychological Serv. P.C. v. Auto One Insurance Co.,18 Misc 3d 1122(A) (NY Civ. Ct. 2008). If there is a request for an improper admission, the correct procedure is to seek a protective order, pursuant CPLR § 3103. See Saqiv v. Gamache, 26 AD3d 368 (N.Y.A.D. 2nd Dept. 2006).

The plaintiff s Notice to Admit has established its prima facie case that; (1) necessary billing documents were mailed to and received by insurer, and (2) that the payments of no-fault benefits was overdue. New York Insurance Law § 5106; See Countrywide Ins. Co. v. 563 Grand Medical, P.C., 50 AD3d 313 (NY AD 1st Dept. 2008). As the defendant has presented no testimony or alternative evidence to rebut the plaintiff’s case, this Court must enter judgment for [*3]the plaintiff in the sum of $3,485.00. The plaintiff shall settle judgment plus appropriate costs, interest and attorneys fees upon twenty (20) days notice.

___________________________

J.D.C.

Dated: June 23, 2010

Footnotes

Footnote 1: The assertion that a fact is too “material” to be admitted or denied does not qualify for this sworn “explanation” exemption.

[*1]

District Court of Suffolk County, Third District, April 7, 2010

APPEARANCES OF COUNSEL

Law Offices of Karen C. Dodson, Melville, for defendant. Rapuzzi, Palumbo & Rosenberger, P.C., Wantagh, for plaintiff.

{**27 Misc 3d at 929} OPINION OF THE COURT

C. Stephen Hackeling, J.

Ordered that the defendant’s application for summary judgment is granted in part and denied in part. This action is for medical provider first-party no-fault benefits. Plaintiff raises the threshold issue of whether this application is timely, and asserts that it is procedurally barred as it was made later than 120 days following the filing of the notice of trial.

Summary Judgment Procedural Distinction Supreme Versus District Court

The 120-day requirement is found in CPLR 3212 (a). Pursuant to this statute, applications for summary judgment relief must be made no later than 120 days after filing of the “note of issue,” unless the court has set an earlier date. The note of issue is part of the calendar practice of the supreme and county courts. It is not utilized in District Court practice, in which a “notice of trial” is employed (compare CPLR 3402 and 22 NYCRR 202.21, with UDCA 1301 and 22 NYCRR 212.17 [a]). In enacting the 120-day requirement for summary judgment motions in supreme and county courts, the legislature chose not to enact an amendment to the Uniform District Court Act or to otherwise expressly provide that the reference in CPLR 3212 (a) to the note of issue should be treated as a reference to the notice of trial. The legislature’s election to differentiate between a “notice of trial” and a “note of issue” in fashioning its 120-day section 3212 (a) limitation must be respected. In construing New York’s statutes, the legislature has proscribed that the court follow the Latin maxim “expressio unius est exclusio alterius,” i.e., “where a law expressly describes a particular act . . . an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240; see also Doyle v Gordon, 158 NYS2d 248 [Sup Ct, NY County 1954].)

Additionally, although UDCA 1001 reads, in part, that “[m]otion practice in [district] court, including time provisions for the making . . . of motions . . . shall be governed by the CPLR,” this provision is not a basis for applying the 120-day{**27 Misc 3d at 930} time limitation of CPLR 3212 (a) to summary judgment motions in this court, as the latter statute only refers to the note of issue. If ever UDCA 1301 and the court rules are amended to require a note of issue instead of a notice of trial, the UDCA 1001 120-day limitation found in CPLR 3212 (a) will apply here. At present, however, the legislature appears to have deemed the litigation delays once existing in supreme and county court calendar practice (which it addressed in 1996 by adding the 120-day limitation to CPLR 3212 [a]) to be of insufficient magnitude in District Court to apply the limitation here. The court is also persuaded by Judge Straniere’s opinion in Panicker v Northfield Sav. Bank (12 Misc 3d 1153[A], 2006 NY Slip Op 50880[U] [Civ Ct, Richmond County 2006]), holding that the 120-day limitation of CPLR 3212 (a) is inapplicable to Civil Court summary judgment motions. Accordingly, the defendant’s application is not barred as untimely, and the court will consider it upon the merits.

Summary Judgment on the Merits

The proponent of an application for summary judgment must make a prima facie showing of its entitlement to judgment as a matter of law. Should it fail to do so, its motion must be denied. However, once it makes a prima facie showing, but not until then, the party opposing summary judgment must show the existence of factual issues requiring trial. If the opposing party makes this showing then, again, the motion must be denied. When the opposing party has not shown the existence of factual issues for trial, the proponent having established its prima facie case, summary judgment in favor of the proponent is appropriate (see CPLR 3212 [b]). [*3]

Contrary to plaintiff’s position, the affidavits of defendant’s litigation examiner and mail service establish that defendant made partial payment and partial denial of plaintiff’s claim in timely fashion. Taken together, these affidavits create a presumption of mailing by “proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” (See Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001].) The plaintiff has submitted no evidentiary proof to rebut this presumption.

Plaintiff, a health services provider, rendered his services to his assignor over 44 days from January 26, 2000 to May 23, 2000. The dispute with respect to the partial denial of much of plaintiff’s claim concerns defendant’s application of ground rule{**27 Misc 3d at 931} 11 of the medical fee schedule, which limits the payment for multiple procedures and modalities performed on the same day to the services plaintiff billed using current procedural terminology (CPT) codes 97010, 97032 and 97250. Defendant has made a prima facie showing that its interpretation and application of rule 11 is correct, and in its opposition plaintiff does not offer an adequate challenge to defendant’s interpretation. Defendant’s motion for summary judgment dismissing these portions of plaintiff’s claims is granted.

Defendant also disallowed a portion of plaintiff’s claims for March 13, 2000 and April 17, 2000 services under CPT code 99204 (code used by defendant in denying claim) or 99205 (code used by plaintiff in submitting claim). Whichever code is correct, both of them apply to office or other outpatient visits of new patients for purposes of evaluation and management. As the assignor was not a new patient, the denial of these portions of plaintiff’s claim was proper. The defense application for summary judgment dismissing these items of plaintiff’s claim is granted.

Part of plaintiff’s claim for January 31, 2000 was under CPT code 99213. Defendant has demonstrated that the computation of the amount for the service provided was incorrect, that the amount it paid was the correct amount, and that the plaintiff has not challenged defendant’s showing. Summary judgment dismissing this part of plaintiff’s claim is also granted.

The remaining disputes concern parts of the claim for services provided on January 27, 2000 and May 23, 2000. For January 27, 2000, plaintiff submitted its claim under CPT code 99244, which applies to office consultations. Defendant deemed the correct CPT code to be 99204, which applies to office visits, and made partial payment which accorded with the amount payable using CPT code 99204. Similarly, for May 23, 2000, plaintiff submitted a claim using CPT code 99214, which is for office or other outpatient visits that involve medical decisionmaking of moderate complexity. Defendant based its payment on CPT code 99213, for office or other outpatient visits involving medical decisionmaking of low complexity.

The defendant has submitted the affidavit of its certified professional coder in support of its application. In explaining her determination that CPT code 99204 should apply instead of CPT code 99244, the coder makes a conclusory allegation that “[b]ased on the submitted documentation, the 99204 code better reflects the service rendered” (affidavit of Jeanne [*4]MacLeod{**27 Misc 3d at 932}-Lang, Dec. 1, 2009, ¶ 12). Nothing is offered to explain her conclusion that 99204 is the better code. No mention is made at all of the determination to apply CPT code 99213 instead of 99214 for the May 23, 2000 claim. Defendant has failed to establish a prima facie case that it properly paid plaintiff for these two services, and so summary judgment with respect to them is inappropriate (CPLR 3212 [b]).

Accordingly, defendant’s motion for summary judgment is granted except for the following portions of plaintiff’s claim, described as they appear on plaintiff’s claim forms: (1) January 27, 2000, office, initial consultation visit, 99244, $182.18, and (2) May 23, 2000, office, follow-up visit, 99214, $71.

[*1]

District Court of Suffolk County, Third District, February 17, 2010

APPEARANCES OF COUNSEL

Rapuzzi, Palumbo & Rosenberger, P.C., Wantagh (Jason A. Moroff of counsel), for plaintiff. Carman, Callahan & Ingham, LLP, Farmingdale (Evelina K. Popijakowska of counsel), for defendant.

{**27 Misc 3d at 437} OPINION OF THE COURT

C. Stephen Hackeling, J.

At a trial of the above-captioned “medical service provider no-fault” action conducted December 17, 2009, neither side presented witnesses. Instead, the plaintiff offered into evidence a notice to admit dated November 13, 2009 which asked the defendant to admit it received the attached claim and assignment for no-fault medical provider services for $1,184.66, that the defendant denied the claim and that payment was not made thereon. Thereafter, the plaintiff rested asserting the establishment of a prima facie cause of action pursuant to Insurance Law § 5106 (a). The defendant conceded it did not respond to the notice to admit and presented no testimony or alternative evidence. It is the defendant’s contention that it need not establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

The issue presented to the court for disposition is whether a no-fault medical service provider can establish its section 5106 (a) prima facie cause of action through a notice to admit. It is the court’s opinion that it can.

The court concurs with the plaintiff’s assertion that New York’s courts have consistently [*2]held that a plaintiff in a medical service provider no-fault matter establishes its prima facie entitlement to relief by demonstrating: (1) the prescribed statutory billing forms were mailed to and received by the defendant; and (2) payment of no-fault benefits is overdue. (See Insurance Law § 5106 [a]; Kipor Medicine P.C. v MVAIC, 23 Misc 3d 948 [Civ Ct, Kings County 2009], citing Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; see generally Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004].)

At first blush it would appear that two such noncomplex elements could appropriately be established via a CPLR 3123 formal judicial admission. However, the Appellate Term, Second Department, for the 2d, 11th and 13th Judicial Districts has determined that a notice to admit, by itself, is not evidentiary proof sufficient to establish a prima facie case, and that witness{**27 Misc 3d at 438} testimony is necessary to lay a foundation to establish the admissibility of a claim in the form of a business record. (Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2007].) In stark contrast several Appellate Term courts in the First Department have determined that judicial admissions constitute evidence sufficient to prove mailing and receipt of no-fault medical provider claims. (See P.L.P. Acupuncture, P.C. v Travelers Indem. Co., 19 Misc 3d 126[A], 2008 NY Slip Op 50484[U] [App Term, 1st Dept 2008], citing Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [App Term, 1st Dept 2007].) This position is further buttressed by an Appellate Division, First Department, holding that informal judicial admissions established via answers to interrogatories in a personal injury action can establish a prima facie case. (Bigelow v Acands, Inc., 196 AD2d 436 [1st Dept 1993].)

The doctrine of stare decisis binds this court to follow the rulings of its Appellate Term (9th & 10th Jud Dists), the Appellate Division, Second Department, and the New York Court of Appeals. The plaintiff advances the argument that stare decisis requires it to adopt the Appellate Division/Appellate Term, First Department, decisions in the absence of a Second Department or Court of Appeals decision. (See Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984].) While generally true, the novel complicating factor in this case is that an Appellate Term court in a different district in this court’s Appellate Division has contemporaneously taken a contrary position. In such a circumstance, when presented with conflicting appellate decisions from outside its jurisdictional chain, this court determines that stare decisis does not bind it and that it is free to make its own decision.

The court notes that a sister Suffolk County District Court has already addressed the issue and rendered a treatise decision citing to a plethora of case law and to Professor David Siegel, New York Practice, Prince, Richardson on Evidence and Wigmore, Evidence, which allowed the use of notices to admit as prima facie evidence. (Seaside Med., P.C. v General Assur. Co., 16 Misc 3d 758 [Suffolk Dist Ct 2007].) This holding appears correct, especially in light of the simplified expedited payment process that the legislature has established for no-fault claims. “Notices to admit” are more than simply a discovery device, such as an interrogatory. The fundamental purpose of a notice to admit is to expedite the trial by eliminating the need to call a witness to prove an undisputed fact; matter which is easily{**27 Misc 3d at 439} provable or the genuineness of a document. (See Brilliant, Outside Counsel, Courts Differ on Notice to Admit Use in No-Fault Insurance Cases, NYLJ, Mar. 26, 2009, at 4, col 3; see generally Taylor v Blair, 116 AD2d 204 [1st Dept 1986].) The distinction between informal judicial [*3]admissions which are adduced in sworn deposition transcripts and interrogatory answers, and those established via formal judicial admissions established in a notice to admit, is that the informal admissions must be proved at trial via witness testimony. The absence of an affirmative denial waives the need to prove the requested admission as effectively as if admitted in the answer.

Accordingly, the court finds that the plaintiff has established an unrebutted prima facie cause of action pursuant to Insurance Law § 5106 (a) and enters judgment for it in the sum of $1,184.66 plus statutory interest from 30 days after its claim date, statutory attorneys fees and costs.

District Court of Nassau County, Third District

4787/04

Attorneys: Israel, Israel & Purdy, LLP for Plaintiff

Carman, Callahan & Ingham, LLP for Defendant

Fred J. Hirsh, J.

BACKGROUND

Defendant moves to compel the deposition of German Laufer (“Laufer”) more than 3 years after the filing and service of the Notice of Trial and Certificate of Readiness for Trial. Laufer is the principal of the plaintiff Media Neurology P.C. (“Media”).

Media provided medical treatment to Jerome Ajodhasingh for injuries he sustained in a motor vehicle accident that occurred on May 17, 2004. Ajodhasingh assigned his right to receive no-fault benefits for this treatment and testing to Media.

On or about July 16, 2004, Media submitted its bill for this treatment to Liberty Mutual Insurance Company (“Liberty”) for payment. Liberty denied payment of the bill

on the grounds the services were not medically necessary.

Liberty did not serve a notice to take the deposition of Laufer as part of its discovery demands.

Discovery was completed. Media filed a Notice of Trial and Certificate of Readiness for Trial on March 27, 2006.^[FN1]

In November 2008, Laufer was indicted in Queens County on charges of no-fault insurance fraud and on other charges. The indictment alleges inter alia Laufer’s billed no-fault insurance carriers for services he did not perform or for tests he did not [*2]conduct.

DISCUSSION

A party has 20 days from service of the Notice of Trial and Certificate of Readiness for trial to move to vacate same on the grounds discovery is not complete. 22 NYCRR 212.17(c). This motion was made substantially more than 20 day after the Notice of Trial was served and filed.

In order to obtain discovery after the filing of the Notice of Trial, the party seeking discovery must demonstrate unusual and unanticipated circumstances developed after the filing of the Notice of Trial necessitating the discovery. Futersak v. Brinen, 265 AD2d 452 (2nd Dept. 1999). Generally, discovery is not permitted after a Notice of Trial is filed. Bilotti v. City of New York, 199 AD2d 297 (2nd Dept. 1993). Liberty asserts Laufer’s indictment for his alleged filing of fraudulent no-fault claims provides the unusual and unanticipated circumstances necessitating the deposition.

While a post Notice of Trial indictment of a principal of the plaintiff would ordinarily be an unusual and unanticipated circumstance permitting a deposition, it is not in this case.

A no-fault insurance carrier must either pay or deny a claim with 30 days of receipt of the claim. Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 AD3d 13 (2nd Dept. 2009); and 11 NYCRR 65-3.8(a)(1). Except for certain limited exception, that are not applicable in this case, an insurance carrier is precluded from rasing a defense to a no-fault claim not stated in a timely served denial. Hospital for Joint Disease v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312 (2007); and Presbyterian Hosp. in the City of NY v. Maryland Cas. Co., 90 NY2d 274 (1997). While a no-fault carrier may deny a claim on the grounds the claim is fraudulent, it must do so in a timely served denial. Fair Price Medical Supply Corp. V. Travelers Ins. Co., 10 NY3d 556 (2008). Liberty did not deny the claim on the grounds of fraud. Therefore, Liberty is precluded from raising fraud as a defense to this action at trial. Id.

CPLR 3101(a) requires “…full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The terms “material” and “necessary” are to be liberally construed to provide for disclosure fo all factual material having a bearing on the case which will assist in preparing for trial. Allen v. Crowell-Collier Publishing Co., 21 NY2d 403 (1968); and Wall v. Villa Roma Resort Lodges, Inc., 299 AD2d 351 (2nd Dept. 2002).

Information is “material and relevant” for the purposes of CPLR 3101(a) if it, “…will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” Allen v. Crowell-Collier Publishing Co., supra at 406.. The demanded material must be produced if it can be used as evidence in chief, for rebuttal or for cross-examination. Allen v. Crowell-Collier Publishing Co., supra ; and Wind v. Eli Lilly & Co., 164 AD2d 885 (2nd Dept., 1990).

The deposition of Laufer is not material or relevant to this action. Since Liberty did not assert fraud as a basis for the denial of the claim filed by Media which is the subject of this action, Liberty is precluded from raising fraud as a defense to this action at trial. Fair Price Medical Supply Corp. v. Travelers Ins. Co., supra .

Laufer may not testify at trial. Media can establish its prima facie case without Laufer’s testimony. [*3]

Plaintiff establishes a prima facie case in an action for first party no-fault benefits through “…evidentiary proof that the prescribed statutory billing forms have been mailed and received, and that the payment of the no-fault benefits was overdue (citations omitted).” Westchester Med. Ctr. v. AIG, Inc., 36 AD3d 900 (2nd Dept. 2007); Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004); and Bajaj v. General Assurance Co., 18 Misc 3d 25 (App.Term 2nd & 11th Jud. Dists. 2007).

The testimony from someone working in Media’s office other than Laufer could establish the bill submitted to Liberty in this case was a business record. William Conover, Inc. v. Waldorf, 251 AD2d 727 (3rd Dept. 1998); Craigg Total Health Family Health Chiropractic Care, P.C. v. QBE Insurance Corp., 20 Misc 3d 1118(A) (Dist. Ct. Nassau Co. 2008); and Lenox Hill Radiology v. New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 851 (Dist.Ct. Nassau Co. 2008). Someone other than Laufer could testify to establish the bill was submitted timely. Careplus Med. Supply Inc. v. Travelers Home & Mar. Ins. Co., 7 Misc 3d 133(a) (App.Term. 2nd & 11th Jud. Dists. 2005); and King’s Medical Supply, Inc. v. Progressive Ins., 3 Misc 3d 126(a) (App.Term. 2nd & 11th Jud. Dists. 2004).

Timely submission of a no-fault claim creates a presumption of medical necessity. All County Open MRI & Diagnostic Radiology. P.C. v. Travelers Ins. Co., 11 Misc 3d 131(a) (App.Term 9th & 10th Jud. Dists. 2006).

The only purpose for which the charges alleged in the Queens County indictment could be used would be for impeachment if Laufer testifies at trial. CPLR 3117(a)(1).

If Laufer were to be convicted at trial or plead guilty to the Queens County charges prior to the trial of this action, Laufer could be asked if he testified at the trial of this action if he has been convicted of a crime and questioned regarding the facts underlying the conviction, People v. Sorge, 301 NY 198 (1950); and CPLR 4513.

Laufer could be cross-examined at trail regarding the allegations contained in the indictment or any other uncharged acts if those acts are criminal, immoral or vicious. People v. Walker, 83 NY2d 455 (1994); and People v. Schwartzman, 24 NY2d 214, cert. dnd. 396 U.S. 846 (1969). Laufer could also be cross-examined regarding these facts underlying the indictment or any other acts not charged in the indictment if they indicated an untruthful bend or a willingness to place his interests above those of society. People v. Walker, supra . If Laufer is acquitted, he could not be questioned regarding any of the facts alleged in the indictment. People v. Santiago, 15 NY2d 640 (1964); and People v. Parsons, 6 AD3d 364 (1st Dept. 2004).

If this court ordered Laufer to appear for deposition, Laufer could assert his Fifth Amendment right at the deposition. Dibble v. Consolidated Rail Corp., 181 AD2d 1040 (4th Dept. 1992); White v. Martins, 100 AD2d 805 (1st Dept. 1984); Ferraro v. New York Telephone Co., 94 AD2d 784 (2nd Dept. 1983); Watson v. State of New York, 53 AD2d 798 (3rd Dept. 1976); and Mora v. St. Vincent’s Catholic Med. Ctr. of New York, 8 Misc 3d 868 (Sup.Ct. N.Y.Co. 2005). Thus, even if the court were to order Laufer to appear for deposition there is a strong likelihood that Laufer would refuse to answer the questions posed to him by Liberty’s attorney.

The determination of whether unusual or unanticipated circumstances exist permitting discovery after the filing of the Notice of Trial is one addressed to the discretion of the trial court. Meadow Lane Equities Corp. v. Hill, -A.D.3d -, 879 NYS2d [*4]725 (2nd Dept. 2009).

Since the testimony that could be elicited at deposition could only be used only for the limited purpose of impeachment on cross-examination of a witness who might not even testify at trial and would could refuse to answer the questions by invoking his Fifth Amendment right, defendant has not establish unusual or unanticipated circumstances exist that would permit defendant to take the deposition of Laufer three years after the Notice of Trial was filed. Schissler v. Brookdale Hosp. Ctr., 289 AD2d 469 (2nd Dept. 2001).

The court notes that if Laufer is convicted of insurance fraud and this claim is a fraudulent claim, Laufer could be compelled to make restitution as part of his plea or sentence. Penal Law §60.27.

For the foregoing reasons, defendant’s motion for an order compelling German Laufer to appear for deposition is denied.

The attorneys for the parties are directed to appear for a pre-trial conference in Civil Part 3 on August 11, 2009 at 9:30 a.m.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: July 6 , 2009

cc:Israel, Israel & Purdy, LLP

Carman, Callahan & Ingham, LLP

Footnotes

Footnote 1:Since the recovery sought was less than $6000, the action had to proceed to mandatory arbitration. 22 NYCRR Part 28. Although the Notice of Trial was filed in March 2006, the action did not proceed to arbitration until June 24, 2008. A copy of the arbitrator’s award was mailed to the attorneys for the parties on July 7, 2008. 22 NYCRR 28.11. The Demand for a Trial De Novo was filed and the required fee was paid on July 15, 2008. 22 NYCRR 28.12.

The trial of this action was further delayed by the closing of the Third District Courthouse at the end of 2008 resulting in the action be reassigned to Civil Part 3 in Hempstead

District Court of Nassau County, Third District

CIV 4842/04

srael, Israel & Purdy, LLP attorney for Plaintiff

Law Offices of Robert P. Tusa, attorney for Defendant

Robert A. Bruno, J.

Plaintiff commenced this action to recover the sum of nine hundred fifty-eight dollars and thirty-two cents ($958.32) for psychiatric evaluation and testing performed on assignee on September 12, 2003, relating to injuries assignee allegedly sustained on August 30, 2003.

Prior to the commencement of the trial, the parties stipulated (“Stipulation”) to Plaintiff’s prima facie case and Defendant’s timely issuance of a proper denial of claim based upon a defense of lack of medical necessity. The Stipulation further provided that the only issue for this Court to decide was whether the services Plaintiff provided were medically necessary. The Stipulation was entered into evidence as Court Exhibit 1.

At trial, Defendant bears the burden of proof for its defense of lack of medical necessity (see A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493, 2006 NY Slip Op 50260(U) [Civ. Ct. Kings Co. 2006]; A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 NYS2d 299, 2005 NY Slip Op 50662(U) [Civ. Ct. Kings Co. 2005]).

A no-fault insurer defending a denial of first-party benefits on the ground that the billed for services were not medically necessary must show that the services provided were inconsistent with generally accepted medical/professional standards. The opinion of the insurer’s expert, standing alone, is insufficient to carry the insurer’s burden of proof that the services were not medically necessary (see CityWide Social Work & Psychological Services v. Travelers Indem. Co., 3 Misc 3d 608, 777 NYS2d 241 [Civ. [*2]Court Kings County 2004]; Ultimate Medical Supplies v. Lancer Insurance Co., 7 Misc 3d 1002(A), 801 NYS2d 243, 2004 NY Slip Op 51860(U) [Civil County Kings County 2004]; Expo Medical Supplies, Inc. v. Clarendon Insurance Company, 12 Misc 3d 1154(A), 819 NYS2d 209, 2006 NY Slip Op 50892(U), 2006 WL 1341418). At trial, Defendant bears the burden of proof for its claim of lack of medical necessity (see Expo Medical Supplies, Inc. v. Clarendon Insurance Company, supra; A.M. Medical Services v. Deerbrook Insurance Co., Slip Copy, 18 Misc 3d 1139A, 2008 NY Misc. LEXIS 749, 2008 WL 518022 (NY City Civ. Ct.), 2008 NY Slip Op. 50368(U)).

In order for Defendant to prevail, Defendant must establish a factual basis and medical rationale for its claim of lack of medical necessity (see Nir v. Allstate Insurance Co., 7 Misc 3d 544, 796 NYS2d 857 [Civ. Ct. Kings Co. 2005]). Defendants’ medical expert, Dr. Samuel Rock, testified that he reviewed the medical records and reports of the claimant and that he had sufficient information to render an opinion as to whether the services rendered were medically necessary. Dr. Rock testified on direct examination that he reviewed the medical records he received from Dr. Braun as well as other medical reports and results of the Beck inventory tests.

Dr. Rock also testified that the general accepted medical/professional standard for conducting the initial interview is six (6) weeks post-accident and to conduct the initial interview any earlier could result in a false positive, as most individuals experience some type of psychological stress after an accident, but the initial stress dissipates several weeks thereafter.

In the instant case, Dr. Braun conducted the initial interview on September 12, 2003, thirteen (13) days post accident, which according to Dr. Rock was improper and against generally accepted medical/professional standards.

In addition to the foregoing, Dr. Rock testified that had the initial interview been properly conducted, a determination could have been made that claimant was not seriously psychologically disturbed and therefore no additional testimony would be necessary.

According to Dr. Rock, the medical reports he reviewed does not indicate whether the claimant was ever treated, or whether Dr. Braun ever examined claimant or just relied upon the paperwork generated from claimant’s self-administered Beck inventory tests.

In addition to the foregoing, Dr. Rock testified that the results of Dr. Braun’s tests indicated claimant had the mildest form of anxiety, and in Dr. Rock’s opinion, that diagnosis could have been determined during a proper forty-five (45) minute interview rendering subsequent testings unnecessary.

On cross-examination, Dr. Rock admitted, he did not review the accident report, hospital records or Dr. Gelphan’s report in concluding the tests performed on claimant [*3]were not medically necessary. However, on re-direct examination, Dr. Rock testified that even if he had reviewed those reports they would not have effected his opinion regarding the lack of medical necessity.

Once Defendant insurer presents sufficient evidence to establish a defense based on lack of medical necessity, the burden shifts to Plaintiff to present its own evidence of medical necessity (see Prince, Richardson on Evidence Section 3-104, Section 3-202 [Farrell 11th ed]; West Tremont Medical Diagnostic, P.C. v. Geico Ins. Co., 13 Misc 3d 131(A), 824 NYS2d 759, 2006 NY Slip Op 51871(U) [2006]). In the case at bar, Plaintiff did not call any witnesses to rebut Dr. Rock’s testimony but relied upon its cross-examination of Dr. Rock to defend its claim of medically necessity. The Court finds that Plaintiff has failed to refute Defendant’s expert witness testimony that the services provided deviated from the generally accepted medical professional standards and has failed to produce any rebuttal evidence to prove medical necessity for the services rendered.

Accordingly, judgment is hereby rendered for Defendant.

This constitutes the Decision and Order of the Court.

SO ORDERED.

DISTRICT COURT JUDGE

Dated: July 1, 2008

cc:Israel, Israel & Purdy, LLP

11 Grace Avenue, Suite 111

Great Neck, New York 11021

Law Offices of Robert P. Tusa

1225 Franklin Avenue, Suite 500

Garden City, New York 11530