Rose Med. Acupuncture Servs. P.C. v Specialized Risk Mgt.
Annotate this CaseDecided on September 23, 2004
City Court of Mount Vernon
ROSE MEDICAL ACUPUNCTURE SERVICES P.C., A/A/O STEVEN SLATER Plaintiff,
against
SPECIALIZED RISK MANAGEMENT, Defendant.
4306-03
Maria C. Diglio, Esq., Belesi, Donovan & Conroy, P.C., Attorneys for Plaintiff, 1225 Franklin Avenue, Suite 400, Garden City, NY 11530. Jason M. Bernheimer, Esq., Attorneys for Defendant, 245 Main Street, Suite 600, White Plains, New York 10601.
Adam Seiden, J.
Plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment dismissing the complaint are decided as follows:
Plaintiff, a healthcare provider and assignee of no-fault benefits, commenced this action against the defendant insurer to recover first-party no-fault benefits. In this case, the assignor, Steven Slater, was allegedly injured in a motor vehicle accident on May 24, 2002, wherein he was a passenger on a Liberty Lines Transit bus. Plaintiff submitted claim forms to the defendant, Liberty Lines' insurer, for payment of no-fault benefits. Defendant denied the claim for acupuncture treatment on the basis that Mr. Slater was undergoing concurrent physical therapy and chiropractic treatment at the same time as the alleged acupuncture treatment.
In support of its motion for summary judgment, plaintiff has submitted the affidavit of Dipak Nandi, MD, who attests that he is associated with plaintiff medical facility. He states that based upon a review of Steven Slater's file and his medical opinion, plaintiff provided reasonable and necessary medical services to Mr. Slater from May 28, 2002 thru July 9, 2002 for injuries that were causally related to and resulting from the accident. Dr. Nandi asserts that Health Insurance Claim Forms were properly submitted to the defendant for the services rendered. Copies of the claim forms are attached as Exhibit A. He attests that the defendant failed to render payment to the plaintiff within 30 days of the submission of the claim forms. Copies of the denial of claim forms are also attached to the motion. Dr. Nandi states Steven Slater assigned the right to collect no-fault benefits to the plaintiff.
In response to the application and in support of defendant's cross-motion for summary judgment, defendant first contends that plaintiff's motion for summary judgment must be denied as premature because discovery has not been completed. Specifically, defendant states plaintiff did not produce a fact witness at the scheduled deposition, but instead produced a hired witness, who had no personal knowledge of the practices and procedures of the plaintiff medical facility. Defendant further contends, based on the testimony adduced from plaintiff's deposition witness, that plaintiff is a fraudulent "No-fault Mill" operation. A copy of the deposition transcript of [*2]Daniel Yili Zheng is attached as Exhibit A. Defendant also argues that the billing submissions and treatment records attached to the plaintiff's motion papers are hearsay. Defendant contends that the Affidavit of Dr. Nandi is insufficient to support plaintiff's motion since he failed to state how he is associated with plaintiff, whether he was involved in the treatment of Mr. Slater and whether he has any personal knowledge of the plaintiff's bill submission procedure.
It is well settled that in order to obtain summary judgment, the movant must establish its cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law. The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 (1988); Zuckerman v City of New York, 49 NY2d 557 (1980)).
Under New York Insurance Law, an insurer is required to either pay or deny a claim for medical services rendered under no-fault within 30 days from receipt of proof of the claim (Insurance Law § 5106 (a), 11 NYCRR 65.15(g)(3)), and a failure in denying those benefits within 30 days will preclude the insurer from asserting an affirmative defense of denial of those benefits on various grounds (Melbourne Medical, P.C. v Utica Medical Insurance Co., 2004 NY Misc. LEXIS 826 (2d Dept 2004) (citing Presbyterian Hosp. In City of NY v Maryland Cas. Co., 90 NY2d 274 (1997)).
Upon a review of the affidavit of Dr. Nandi, claim forms and denial of claim forms, admissible under CPLR 4518, the Court finds that the defendant timely denied the claims initially sent by plaintiff on 6/27/02 and 6/28/02 for a total balance of $1,790.00 for acupuncture services rendered to Mr. Slater between 5/28/02 and 6/26/02. Defendant received the forms on 7/2/02 and 7/9/02 and timely denied the claims on July 10, 2002, stating "We have been advised that Mr. Slater is under active treatment at Elm Street Medical where he has been receiving physical therapy and chiropractic treatment since 5/28/02. Your treatment is being rendered concurrently with the above mentioned treatment. . . . Since acupuncture treatment was rendered initially with physical therapy and chiropractic treatment . . ., it is being denied for no-fault benefits."
However, with respect to the claim forms dated and submitted to the defendant 7/5/02 and 7/12/02 for a total remaining balance of $360.00 for acupuncture services rendered to Mr. Slater between 7/1/02 and 7/9/02, the Court finds that the defendant untimely denied these claims. Defendant received these claim forms on or before 7/17/02 and denied the claim on 10/21/02, more than three months after receipt of the claim forms totaling $360.00. It appears that the 7/10/02 Denial of Claim form predated the filing of plaintiff's claim forms dated 7/5/02 and 7/12/02. The defendant's second denial of claim dated 10/21/02 cannot be deemed timely on the basis of its earlier denial of no-fault benefits to plaintiff's assignor for acupuncture treatment (See A&S Medical, P.C., 196 Misc 2d 322 (1st Dept. 2003)). As the Court held in A&S Medical, supra, "When a provider of medical services submits a claim as assignee of an insured, neither the statute nor the regulations contemplate[s] the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier denial issued directly to the insured (Id. (citing Atlantis Med., P.C. v Liberty Mut. Ins. Co., 2002 WL 523102 (Nassau Dist. Co. 2002)). Although the defendant argues that Dr. Nandi's affidavit is insufficient to support the motion because he lacks personal knowledge, the Courts finds it sufficient, as a business entity [*3]may admit business records through a person without personal knowledge of the document, its history, or its specific contents to support a motion for summary judgment, where that person is sufficiently familiar with the business records to aver that the records are what they purport to be and that they came out of the entity's files (DeLeon v Port Authority of N.Y. and N.J., 761 NYS 2d 54 (1st Dept 2003); see also Woods v Zik Realty Corp., 172 AD2d 606 )).
Moreover, the Court cannot find plaintiff's motion premature. Defendant alleges that it served a Notice to Take Deposition upon Oral Examination with its Answer on the plaintiff, however, no copy of the alleged pleading is in the court file or attached to the cross-motion. Further, at the time plaintiff brought the instant motion, there were no outstanding discovery requests. The Court finds that the defendant failed to demonstrate that facts essential to oppose the plaintiff's showing that the defendant received and untimely denied the 7/5/02 and 7/12/02 claim forms were in the plaintiff's exclusive knowledge and possession and could be obtained by discovery (See Delaney v Good Samaritan Hosp., 204 AD2d 678 (2d Dept. 1994); see also Franklin v Dormitory Authority, 291 AD2d 854 (4th Dept 2002)). Based on the foregoing, plaintiff is entitled to partial summary judgment in the amount of $360.00 as a matter of law.
With respect to the surviving claim, the Court finds that material fact issues remain as to the medical necessity of the acupuncture treatment and whether the defendant improperly denied the claims dated 6/27/02 and 6/28/02 totaling $1,790.00 on the grounds of concurrent care. Although acupuncture, physical therapy, and chiropractic are distinct modalities of treatment, they could conceivably be used to treat the same condition (See Universal Acupuncture Pain Services, P.C. v Lumbermens Mutual Casualty Co., 195 Misc 2d 352 (Civ Ct. Queens Co. 2003)). Thus, where the insurer and medical provider disagree on what should be classified as concurrent care, and a denial is then issued, the dispute should be brought before a court of competent jurisdiction for final resolution on this pivotal issue (See id.).
Turning to the defendant's cross-motion, the defendant contends, based on the testimony adduced from plaintiff's deposition witness Daniel Yili Zheng, that plaintiff is operating a fraudulent "No fault Mill" operation. The Court finds, however, that the evidence submitted in support, including the deposition transcript and a Fortune magazine article (Exhibit B), are legally insufficient to support defendant's fraud allegation. Consequently, defendant's cross-motion for summary judgment dismissing the complaint is denied (See Melbourne Medical, P.C. v Utica Mutual Insurance, supra; Amstel Chiropractic, P.C. v Omni Indemnity Co., 2004 NY Slip Op 50088U (2d Dept. 2003)).
Plaintiff granted partial summary judgment in the amount of $360.00. Defendant's cross motion dismissing the complaint is denied.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion dated July 14, 2004; Affidavit in Support; Affirmation in Support; Exhibits A-F. Notice of Cross-Motion dated July 23, 2004; Affirmation in Opposition; Exhibits A-B. Reply Affirmation dated August 23, 2004.
Dated:September 23, 2004
Mount Vernon, New York_________________
HON. ADAM SEIDEN [*4]
Associate City Judge of Mount Vernon
Maria C. Diglio, Esq., Belesi, Donovan & Conroy, P.C., Attorneys for Plaintiff, 1225 Franklin Avenue, Suite 400, Garden City, NY 11530. Jason M. Bernheimer, Esq., Attorneys for Defendant, 245 Main Street, Suite 600, White Plains, New York 10601.
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