Thanks to Damin Toell for the title.  Genius.

Those of you that haven’t been living under a rock or lobotomized probably are aware of the recent cases from the Appellate Term. JT wrote about them.  I wasn’t in the mood to read them or write about them.  I’m still not.  But, I’d be remiss if I didn’t.

“An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion,”[1] so says the Appellate Division, Second Department.  In fact, “an expert’s opinion not based on facts is worthless,”[2] so says the Court of Appeals.  Worthless.

The Appellate Term, in Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U) (App. Term, 2^nd, 11^th & 13^th Jud. Dists. 2010), on the other hand, held

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. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. 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 was not medically necessary is irrelevant

So worthless, then, doesn’t have the same definition at the Civil Court and the Appellate Term.[3] Right.

Wait a second.  Hold on. What about Innovative Chiropractic, P.C. v Travelers Ins. Co., 2010 NY Slip Op 50994(U) (App. Term, 2^nd, 11^th and 13^th Jud. Dists. 2010), where the same Appellate Term held that

[D]efendant also submitted, among other things, an affidavit from its peer review chiropractor and a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue

“Factual basis.”[4]

Assuming that I agree with the Appellate Term’s reasoning as to assignors, namely, “With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor,” doesn’t it matter when the plaintiff’s service were provided in relation to the dates of service for the other providers.  What if the provider performed the services on 1/1/10 and took an assignment on that date, but defendant wanted to have its expert testify as to records from services provided on 1/15/10?

I haven’t pulled the record on this one yet, but I’m willing to bet that no foundation was provided as to where the records came from and the dates that the records were received.  As I’ve said before, if a peer review doctor (let alone a re-peer) receives records to review, the records come from a vendor, who receives the records from the defendant, who receives it from…and so on and so forth.  It is all but certain that no explanation was provided.

Next, steadily moving backwards, the Appellate Term tells us that, if an MRI facility receives a verification request as to the referring doctors’ records, it has to tell the insurance company what it already knows.  But, it isn’t all bad.  If that’s the case, a simple form letter saying, “We are an MRI facility, we don’t have those records,” should be enough to make the insurance company take some other, affirmative, action.  It’s wrong, and silly, but like I said, it’s not all bad.

It doesn’t stop there.  Well, Urban Radiology does, but the Appellatetermageddon doesn’t: Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50990(U) (App. Term, 2^nd, 11^th & 13^th Jud. Dists. 2010).

Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed.

Can this be reconciled with Cirucci?[5] Can it be reconciled with Zuppa?  Can an insurer show that it denied the correct claim, if it doesn’t offer the denial for its truthiness?  Sure, some of you will say, “well, if the plaintiff established it’s prima facie case, then most of the stuff that would be subject to a hearsay[6] objection will already be in evidence through plaintiff’s bills.”  I’ll answer : (1) all but two or three of you thought about that, and well, you’re ugly and nobody loves you; (2) see (1); and (3), I guarantee you that the lower courts would issue a ruling, misguided as it is, that the plaintiff failed to establish its prima facie case and that the defendant provided a foundation for its denial, or, that defendant established its prima facie case, but plaintiff didn’t.[7]

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 2010 NY Slip Op 50991(U) (App. Term, 2^nd, 11^th &13^th Jud. Dists. 2010) doesn’t add anything, other than some talk about EUOs.  There were a few other decisions about stipulations and dismissals, and their consequences, but that stuff is old news.[8] And there was some 3212(f) stuff, that I’m not even going to bother putting in a footnote.

On a final, and positive note, the Appellate Term gave us Excel Imaging, P.C. v MVAIC, 2010 NY Slip Op 50998(U) (App. Term, 2^nd, 11^th &13^th Jud. Dists. 2010) (“[P]laintiff contends that the order, insofar as appealed from, should be affirmed, as triable issues exist regarding, among other things, whether the denial of claim form had been issued in duplicate…Upon a review of the record, we agree with the Civil Court’s determiFnation that MVAIC is not entitled to summary judgment.”)

Continuing on that positive note, it appears as if State Farm, through its counsel, changed it position on what constitutes a claim.  LMwho?

Sometimes I wonder why I don’t write substantive posts.  This is why.

If anyone has more cases to add or some insight, please comment.  I had to rush this through because in an hour or so I have to go watch my daughter’s ballet recital.  That leaves me almost no time to drink in preparation.

[1] Rosato v 2550 Corp., 70 AD3d 803 (App. Div., 2^nd, 2010) h/t to Damin Toell for sending the case my way

[2] Caton v. Doug Urban Const. Co., 493 N.Y.S.2d 453 (Ct. App. 1985)

[3] The judicial equivalent of the Bistromathic Drive?

[4] Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2010 NY Slip Op 50997(U) (App. Term, 2^nd, 11^th &13^th Jud. Dists. 2010) said the same thing.

[5] General Acc. Ins. Group v. Cirucci, 414 N.Y.S.2d 512 (Ct. App. 1979).

[6] See generally, Hochhauser v Electric Ins. Co., 46 AD3d 174 (App. Div., 2^nd, 2007)

[7] It’s all garbage because, despite what the Appellate Term says, the plaintiff does not need to provide a foundation for the facts contained in the bill; it’s the defense that matters.  See generally, Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 (Ct. App. 2008).

[8] Boris Kleyman, P.C. v General Cas. Ins. Co., 2010 NY Slip Op 50992(U) (App. Term, 2^nd, 11^th & 13^th Jud. Dists. 2010); Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 2010 NY Slip Op 50993(U)) (App. Term, 2^nd, 11^th & 13^th Jud. Dists. 2010); Ema Acupuncture, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 50995(U) (App. Term, 2^nd, 11^th & 13^th Jud. Dists. 2010).  Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 51000(U)) (App. Term, 2^nd, 11^th & 13^th Jud. Dists. 2010) was the only one that was remotely interesting.  In that case, had the plaintiff opposed the original 3216 motion and lost, or waited until it got a determination on the motion, before filing the new lawsuit, it might have benefited from an SOL toll via the (relatively) amended CPLR 205. I probably should have put this in the post and note this footnote.

Bath Med. Supply Inc. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 31281(U) (Sup Ct, Nassau County, 2010)

Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 2010 NY Slip Op 04522 (App. Div., 1st, 2010)

MVAIC defended the arbitration on the ground that the police accident report showed that the offending vehicle was registered out-of-state and was insured, but the arbitrator refused to consider that defense on the merits on the ground that MVAIC had failed to pay or deny the claim within 30 days of its submission, as required by the no-fault law (Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; [c]). This was contrary to settled law (see generally Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]) recognizing a narrow exception to the 30-day deadline for defenses based on lack of coverage (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). New York Hosp. Med. Ctr. of Queens v MVAIC (12 AD3d 429 [2d Dept 2004], lv denied 4 NY3d 705 [2005]), relied on by the arbitrator, did not involve a lack of coverage issue. We would add that the burden is on MVAIC to prove its lack-of-coverage defense.

Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 50950(U) (Civ Ct City NY, Kings County, 2010)

In support of its second contention, Plaintiff argues that despite the fact that the accident occurred in Kings County and the Plaintiff resides in Kings County, Defendant scheduled the EUOs to be held at the offices of its counsel located in Westchester County. As such, Plaintiff claims that the EUO notices were defective and unreasonable because it failed to provide that Plaintiff would be paid for her time and travel expenses.

Here, it is undisputed that Plaintiff did not respond to the Verification Request. Plaintiff asserts that it was not required to respond due to the fact that Defendant’s request was defective and unreasonable. The Court disagrees. There is no provision of the No Fault Regulations which allow a claimant or insurance company to ignore a Verification Request or response. In fact, there is ample case law which provides that neither party may ignore communications from the other without risking its chance to prevail in the matter (see, Media Neurology, P.C. v. Countrywide Ins. Co., 21 Misc 3d 1101(A); and Westchester County Medical Center v. NY Central Mutual Fire Ins. Co., 262 AD2d 553). Even when a claimant believes it need not comply with a verification request, the claimant still has a duty to communicate with the insurer regarding the request (see, Dilon Medical Supply Corp. v. Travelers Insurance Co., 7 Misc 3d 927). It is well established that the purpose of the No Fault statute is to ensure prompt resolution of claims by accident victims. The parties’ obligations are centered on good faith and common sense. Any questions concerning a communication should be addressed by further communication, not inaction.(see, Dilon Medical Supply Corp. v. Travelers Insurance Co, supra).

If a Plaintiff deems a Verification Request to be defective and or unreasonable, it is incumbent on that Plaintiff to convey that information to the Defendant and to state the reasons thereof, thereby giving the Defendant the opportunity to respond accordingly. The Defendant should not be put in a position to second guess the reason or reasons why the Plaintiff has failed to respond to the request. In this case, the Plaintiff could have informed the Defendant that given the fact that the Plaintiff resided in Brooklyn, the scheduled location for the EUO was inconvenient, or in the alternative, Plaintiff could have requested reimbursement for time and travel expenses, thereby preserving its defenses concerning the EUO notices (see, Presbyterian v Maryland, 90 NY2d 274). By failing to respond to Defendant’s Verification Request, Plaintiff undermined the purpose of the No Fault Statute, which is to ensure the prompt resolution of claims.

The Court finds that by failing to respond to Defendant’s Verification Request, Plaintiff waived its defense and is therefore estopped from asserting that the EUO notices were defective and unreasonable. Defendant should not be penalized for Plaintiff’s inaction. Accordingly, the Court [*3]need not address Plaintiff’s arguments concerning the sufficiency of Defendant’s EUO requests (see Allstate Social Work and Psychological Svcs. v. Utica Mutual Insurance Co., 22 Misc 3d 723).

I took notes.  But the notes are for me, not you.  You can have the footnotes.

JT wrote about it (Marmer).  I posted it on the CPLR blog.  It’s sort of relevant.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of establishing, by proof in admissible form, their prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d 78, 83). This burden may be satisfied only by the defendant’s affirmative demonstration of the merit of the defense, rather than merely by reliance on gaps in the plaintiffs’ case (see DeFalco v BJ’s Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637, 638). Here, the defendants submitted [*2]hospital laboratory reports and records of the New York City Department of Health and Mental Hygiene. As the Supreme Court concluded, however, because these documents were neither certified nor authenticated, and thus were not in admissible form, they could not be considered on the motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth., 36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v City of New York, 48 AD3d 798, 799). Moreover, the affirmation of the defendants’ attorney submitted with very brief excerpts of deposition testimony was insufficient to establish the defendants’ entitlement to judgment as a matter of law (see Irving v Great Atl. & Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216 AD2d 434). Inasmuch as the defendants failed to carry their burden, denial of the motion was required without regard to the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the plaintiff did not sustain a serious injury as a result of the subject accident. Specifically, the defendants failed to show that the plaintiff did not sustain a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the subject motor vehicle accident, as articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In the plaintiff’s bill of particulars, she clearly set forth that, as a result of the subject motor vehicle accident, she sustained, inter alia, a serious injury under the 90/180-day category of Insurance Law § 5102(d). The affirmed reports of the defendants’ examining physicians did not specifically relate any of their findings to this 90/180-day category of serious injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants’ failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we need not consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58 AD3d 815).

Too many motions rely on “gaps in the plaintiff’s case.”  In most cases, the “gaps” aren’t gaps, they are attempts to move burdens by sleight-of-hand.  Cherry-picking a deposition transcript is a bad idea when you don’t attach the entire transcript.  Attaching the transcript won’t do much unless it is admissible.  And so on and so forth.  Etc. Etc. Etc.