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Elmont Open Mri & Diagnostic Radiology, P.C. Doing v. New York Central Mutual Fire Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 16, 2010

ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C. DOING
BUSINESS AS ALL COUNTY OPEN MRI & DIAGNOSTIC
RADIOLOGY AS ASSIGNEE OF STACIE GARDNER,
RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INS. CO.,
APPELLANT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated May 21, 2009.

Elmont Open Mri & Diagnostic Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Department 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2010

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

The order denied defendant's motion for, among other things, summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and for an award of costs and sanctions. Plaintiff opposed the motion, and the District Court denied the motion, finding that the affidavit of defendant's senior litigation examiner was insufficient to establish the timely mailing of the denial of claim forms, and that the peer review report submitted by defendant failed to establish that the services rendered lacked medical necessity since the medical records and/or documents relied upon by the peer review doctor in making his determination were not annexed thereto. The instant appeal by defendant ensued.

Contrary to the determination of the District Court, the affidavit of defendant's senior litigation examiner was sufficient to establish that defendant had timely mailed the denial of claim forms in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The claims were denied on the ground that the services rendered were not medically necessary.

Defendant's affirmed peer review report, submitted in support of its motion, established, prima facie, that there was a lack of medical necessity for the services at issue. The fact that defendant's peer review doctor considered medical records from plaintiff, as well as from other providers who had treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted that plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, defendant was not required to consider plaintiff's bills in a vacuum and to ignore medical records which defendant had received either from plaintiff's assignor or from another provider who had submitted such records on behalf of the assignor (see Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. In the case at bar, defendant was not attempting to prove that the assignor was injured as documented in his medical records, or that he was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in the assignor's records were true, the treatment allegedly provided by plaintiff was not medically necessary. Therefore, such underlying medical records were not being used for a hearsay purpose (see e.g. Matter of State of New York v Wilkes, AD3d , 2010 NY Slip Op 07006 [4th Dept 2010]; Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided by plaintiff was not medically necessary is irrelevant.

We further note that plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue which plaintiff provided were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat the branch of defendant's motion seeking summary judgment.

Defendant's remaining contention, to wit, that it was entitled to costs and sanctions for plaintiff's allegedly frivolous conduct, lacks merit.

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint is granted

Nicolai, P.J., Molia and LaCava, JJ., concur. Decision Date: December 16, 2010

20101216

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