ALL BORO MEDICAL SUPPLIES INC v. PROGRESSIVE NORTHEASTERN INS CO (2007)

At the outset of this trial to recoup no-fault benefits, the parties stipulated that plaintiff's prima facie case was established, the defendant's denial of claim forms were mailed on the date indicated on each denial, the peer review report and the documents reviewed were in evidence, and that the defendant's witness was an expert.   The defendant proffered the testimony of its peer review physician, John P. Russo, D.C.;   the plaintiff did not proffer any witnesses.

After the bench trial of this matter, in conjunction with the case with the index number 19685/06, regarding assignor Connie Brady, this Court, via correspondence dated August 7, 2007, required the parties to submit post-trial memoranda with respect to plaintiff's motion in limine regarding the time for scheduling an examination under oath.   Plaintiff's memorandum was due on September 11, 2007 and defendant's memorandum was due on October 11, 2007.   Plaintiff failed to provide a memorandum, therefore the defendant did not provide a memorandum, but instead requested that plaintiff's motion in limine be denied for failure to comply with this Court's briefing schedule.

The plaintiff orally argues that the defendant's request for an examination under oath did not toll defendant's time to pay or deny plaintiff's claims because the examination under oath was scheduled more than 30 days after receipt of the claim.   Plaintiff relies on Insurance Regulation 65-3.5(d) and S & M Supply Inc. v. State Farm Mutual Automobile Insurance Company, 4 Misc.3d 130(A), 791 N.Y.S.2d 873 (App. Term 9th & 10th Jud. Dists.2004).   Defendant counters that Insurance Regulations 65-3.5(d) only relates to medical examinations, while subsection (e) instructs as to examinations under oath.   The defendant argues that subsection (e) does not direct a date certain or a specific time to schedule the examination under oath;  the subsection only discusses a reasonable time and place for such examination.

 After due deliberation of the evidence and arguments asserted, this Court finds that the plaintiff's contentions are correct.   Although caselaw directly on point could not be found, this Court must be guided by the legislative intent to resolve no-fault matters expeditiously.  Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536, 683 N.E.2d 1 (1997);  Stephen Fogel Psychological, P.C. v. Progressive Casualty Insurance Co., 35 A.D.3d 720, 827 N.Y.S.2d 217 (2nd Dept.2006);  New York Hospital Medical Center of Queens v. Motor Vehicle Accident Indemnification Corp., 12 A.D.3d 429, 784 N.Y.S.2d 593 (2nd Dept.2004);  Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 9 Misc.3d 76, 803 N.Y.S.2d 337 (App. Term 2nd & 11th Jud. Dists.2005);  Metropolitan Radiological Imaging, P.C. v. State Farm Mutual Automobile Insurance Co., 7 Misc.3d 675, 790 N.Y.S.2d 373 (Civ.Ct. Queens Cty.2005).   Therefore, the defendant was bound to conduct the examinations under oath within the same time period imposed for the medical examinations, to wit, “ within 30 calendar days from the date of receipt of the prescribed verification forms”.  11 NYCRR 65-3.5;  Capio Medical, P.C. v. Progressive Casualty Insurance Co., 7 Misc.3d 129(A), 801 N.Y.S.2d 231 (App. Term 2nd & 11th Jud. Dists.2005);  S & M Supply Inc., supra.

However, the plaintiff failed to offer any evidence as to when it received the verification forms.   Thus, this Court cannot determine whether the examinations were scheduled within the requisite time period.   Therefore, plaintiff's motion is denied.

 Since the parties stipulated that plaintiff's prima facie case was established, the defendant now has the burden of producing the existence of a material issue of fact.   The defendant fails at its burden.   There is not one scintilla of evidence to prove that the defendant timely mailed the verification requests.  Mega Supply & Billing, Inc. v. AIU Insurance Co., 15 Misc.3d 132(A), 839 N.Y.S.2d 434 (App. Term 2nd & 11th Jud. Dists.2007);  Wei Wei Acupuncture, P.C. v. State Farm Mutual Automobile Insurance Co., 14 Misc.3d 144(A), 836 N.Y.S.2d 504 (App. Term 2nd & 11th Jud. Dists.2007);  Oleg Barshay, D.C., P.C. v. State Farm Ins. Co., 14 Misc.3d 74, 831 N.Y.S.2d 821 (App. Term 2nd & 11th Jud. Dists.2006);  Dilon Medical Supply Corp. v. State Farm Mutual Automobile Insurance Co., 13 Misc.3d 141(A), 831 N.Y.S.2d 358 (App. Term 2nd & 11th Jud. Dists.2006);  Fair Price Medical Supply Corp. v. General Assurance Co., 6 Misc.3d 137(A), 800 N.Y.S.2d 345 (App. Term 2nd & 11th Jud. Dists.2005).   Hence, defendant's time to pay or deny the plaintiff's claims was never tolled.

Assuming, arguendo, that the defendant met it initial burden of timely mailing, this Court finds that the defendant's expert's testimony was unpersuasive.   Dr. Russo testified that the equipment was not against accepted medical protocol, but he would not have recommended the equipment in these cases.   This evidence fails to prove that the durable equipment prescribed to Debra and Connie Brady was not medically necessary.

Accordingly, judgment is in favor of the plaintiff in the amount of $822.00 for each case, as well as statutory interest and attorney's fees.

This constitutes the decision and order of the Court.

GENINE D. EDWARDS, J.