Summit Med. Servs., P.C. v American Intl. Ins. Co.

[*1] Summit Med. Servs., P.C. v American Intl. Ins. Co. 2005 NY Slip Op 50725(U) Decided on May 9, 2005 District Court Of Nassau County, Third District Pardes, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 9, 2005
District Court of Nassau County, Third District

Summit Medical Services, P.C., a/a/o Shaun Mitcham, Plaintiff(s)

against

American International Ins. Co., Defendant(s)



5010/03

Sondra K. Pardes, J.

Chief Judge Kaye recently noted that the Legislature enacted the Comprehensive "Automobile Insurance Act"... - commonly known as the No-Fault Insurance Law-with the objective of promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts." (see, Pommells v Perez, NYLJ 4/29/2005, at 18, cols 1-6, at 19 cols 1-3). The instant case, is but one of a myriad of cases that demonstrate the lengths to which parties are willing to go to defeat the objectives of this legislation.

PROCEDURAL HISTORY

This is an action for recovery of No-Fault Insurance benefits for medical treatment provided on September 11, 2002, in the amount of $543.04. The plaintiff commenced this action by service of the summons and complaint on June 19, 2003. Issue was joined on July 18, 2003. The plaintiff served discovery demands dated July 25, 2003 and the defendant responded to those demands on February 26, 2004.

The defendant filed a Notice of Trial and Certificate of Readiness for Trial on [*2]June 4, 2004. The plaintiff filed a motion to strike the defendant's Notice of Trial on

INDEX NO. 5010/03

June 18, 2004, on the grounds that the Notice of Trial was premature and improper in that in that the defendant failed to adequately and completely respond to the plaintiff's discovery demands.

The defendant failed to respond to the plaintiff's motion to strike the Notice of Trial. The motion was submitted without opposition on July 12, 2004. On July 16, 2004 this court, (Marber, J.), directed the parties to appear for a discovery conference on September 30, 2004.

On September 30, 2004 plaintiff's motion to strike the Notice of Trial, the motion was submitted without opposition once again. On October 27, 2004, this court, (Anzalone, J.), issued an Order directing the parties to appear for a discovery conference to be held on December 9, 2004 to address the issues raised in the plaintiff's motion. On November 23, 2004 the plaintiff moved for summary judgment. The conference scheduled for December 9, 2004 was adjourned to January 3, 2005, at the request of the plaintiff.

The defendant's affirmation in opposition to the plaintiff's summary judgment motion did not address the substantive issues raised in plaintiff's motion papers. Counsel only asserts that the Notice of Trial was served June 2, 2004 and had not been vacated and therefore, pursuant to CPLR 3212, the plaintiff's motion for summary judgment should be denied as untimely.

This court directed counsel for both parties to appear for a conference on March 7, 2005. On that date the parties agreed to resubmit the plaintiff's motion to Strike the Notice of Trial and the plaintiff's motion for summary judgment to be decided together. The motions are decided as follows.

MOTION TO STRIKE THE NOTICE OF TRIAL

The Plaintiff's motion to strike the defendant's Notice of Trial was repeatedly submitted without opposition from the defendant. Accordingly the motion is granted.

MOTION FOR SUMMARY JUDGMENT

In order to make a prima facie showing of entitlement to summary judgment in a No-Fault Insurance action, a medical provider must submit evidentiary proof that it submitted the appropriate claim forms and that the forms were received by the insurer. (see, Damadian MRI in Elmhurst v Liberty Mutual, 3 Misc 3d 128 [A], [App Term 9th and 10th Jud Dist, 2003]). Once a prima facie showing has been made, the burden shifts to [*3]the opposing party to produce evidentiary proof to establish the existence of material issues of fact. (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]).

INDEX NO. 5010/03

In the instant case it is uncontroverted that the plaintiff submitted claims for medical treatment to the defendant and the claims were received in November of 2002. Partial payment was made and the balance denied on each claim within the time prescribed by statute. (see, 11 NYCRR 65-3.5[a]). In each case the defendant indicated on the Denial of Claim form, "code changed to reflect level -of service" and paid a lower fee associated with the new code. The plaintiff asserts that the denials were issued "without a sufficiently detailed factual basis and medical rationale" for the claims' rejection, i.e. without any explanation for the determination to change the CPT codes. The plaintiff argues that these denials are ineffectual under the rationale articulated in Amaze Medical Supply Inc. v Eagle Insurance Co., 3 Misc 3d 128 [A]; (App Term, 2nd and 11th Jud Dist, 2003).

In opposition to the motion for summary judgment counsel for the defendant states that this motion should be denied because it was submitted more than 120 days after the service of the Notice of Trial and "the Notice of Trial has not been vacated". The defendant did not respond to the substance of the plaintiff's motion for summary judgment. The defendant's affirmation in opposition was dated December 8, 2004. On that date the defendant was clearly aware that a motion to strike the Notice of Trial had been submitted on June 18, 2004, 16 days after the Notice of Trial was served. The defendant was also aware that motion had been adjourned repeatedly, apparently with consent of both counsel, and no decision had yet been rendered when the motion for summary judgment was filed. Moreover, at a conference held on March 7, 2005, the court pointed out the defendant's failure to oppose the motion to strike the Notice of Trial and its failure to offer any substantive opposition to the motion for summary judgment. Nevertheless, the defendant agreed that both motions be submitted on that date.

Inasmuch as the court has granted the plaintiff's motion to strike the Notice of Trial, the court finds that the plaintiff's motion for summary judgment is not untimely pursuant to CPLR 3212. In addition the court concurs with the plaintiff that the defendant's determination to change the CPT codes with respect to the claims in question and to pay reduced fees not supported by a peer review or any other proof "setting forth a sufficiently detailed factual basis and medical rationale for the claim's rejection" are ineffectual (see, Amaze Medical Supply, supra 2003 WL 23310886, 1) . Finally, the defendant has failed to come forth with any evidentiary proof of a triable issue of fact requiring trial. [*4]

INDEX NO. 5010/03

Accordingly, the plaintiff's motion for summary judgment is granted.

Let judgment enter in favor of the plaintiff and against th defendant in the sum of $543.04, plus interest at the rate of 2% per month from June 19, 2003, plus attorney fees of 20% thereof, (attorney fees not to exceed $850.00), plus costs and disbursements of this action.

So Ordered:

________________________

DISTRICT COURT JUDGE

Dated: May 9, 2005

CC:Israel, Israel & Purdy, LLP

Serpe, Andre & Kaufman

SKP:rad