Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion: Papers Notice of Motion and Affidavits Annexed 1 Cross-Motion 2 Opposition & Reply 3 Exhibits 4 Other DECISION AND ORDER Upon the foregoing cited papers, after oral arguments the Decision/Order on Defendant’s and Plaintiff’s Motions for Summary Judgment are decided as follows: Defendants Motion for Summary Judgment is DENIED and Plaintiff’s Motion for Summary Judgment is GRANTED. As an initial matter. Defendant failed to establish its policy exhaustion defense. “Under the no-fault system, payments of benefits ‘shall be made as the loss is incurred.’ Under this regulatory scheme, ‘an insurer shall pay benefits directly to the ‘applicant,’ or, upon assignment by the applicant, ‘shall pay benefits directly to providers of health care services.’ In addition, ‘an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim’”. See Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 191 A.D.3d 934 (2d Dep’t, 2021) (internal citations omitted). “‘[A]n insurer must pay or deny only a verified claim — that is, a claim that has been verified to the extent compliance with section 65-3.5 dictates in the particular case — within 30 calendar days of receipt; and, conversely, is not obligated to pay any claim until it has been so verified.’ Once claims have been verified they are subject to the priority of payment regulation, 11 NYCRR 65-3.15.” See Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 191 A.D.3d 934 (2d Dep’t, 2021). “In contrast, in the instant case, by denying the claim…, defendant implicitly declared that the claim at issue was fully verified. As we read Nyack Hosp. to hold that fully verified claims are payable in the order they are received, defendant’s argument — that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage — lacks merit. Consequently, defendant has not established its entitlement to summary judgment dismissing the complaint.” Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 55 Misc.3d 44, 45-46 (App. Term, 2d Dep’t, 2017) (internal citation omitted) affirmed by Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 191 A.D.3d 934 (2d Dep’t, 2021). Secondly, Defendant failed to establish the timely and proper mailing of the denials as the denials attached to Defendant’s Motion contain material errors from in Box # 30 having stated an incorrect amount that was billed by the Plaintiff to Box # 32 to erroneously stating the wrong amount in dispute, and in one instance on COA # 3 even identifying wrong date of service in the denial. It has been well established that “[a] proper denial of a claim for no-fault benefits must include the information called for in the prescribed denial of claim form and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. However, a timely denial of a no-fault insurance medical claim alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague, or otherwise involves a defense which has no merit as a matter of law.” St. Barnabas Hosp. v. Allstate Ins. Co., 66 A.D.3d 996 (2d Dep’t, 2009) (internal quotation marks, brackets, and citations omitted). See also General Ace. Ins. Group v. Cirucci, 46 N.Y.2d 862 (1979); St. Vincent’s Hosp. & Med. Ctr. v. New Jersey Mfrs. Ins. Co., 82 A.D.3d 871 (2d Dep’t, 2011). Finally, Defendant failed to establish its “post-IME cut off defense of medical necessity for all causes of action. “An IME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party’s medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert’s prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.” James J. Kim, L.Ac., P.C. v. Allstate Ins. Co., 75 Misc.3d 1230(A) (Civ. Ct., Kings County, 2022) (Moyne, J.). “An IME cut-off is not a complete defense to the action. While an IME can demonstrate a lack of medical necessity for future treatment, it does not, by itself, conclusively demonstrate that any future treatment would not be medically necessary. Instead, the IME merely shifts the burden to the plaintiff to demonstrate, by a preponderance of the credible evidence, that the treatment at issue was medically necessary.” Id.; see also Amato v. State Farm Ins. Co., 40 Misc.3d 129(A) (App. Term, 2d Dep’t, 2013), Unitrin Advantage Insurance Company v. Lake Chiropractic, PLLC, 64 Misc.3d 1201(A) (Civ. Ct., New York County 2019) (Kraus, J.); Amato v. State Farm Ins. Co., 30 Misc.3d 238, 242 (Dist. Ct., Nassau County 2013) (Hirsh, J.); All-In-One Med. Care, P.C. v. Govt. Employees Ins. Co., 43 Misc.3d 726, 734 (Dist. Ct., Nassau County, 2014) (Ciaffa, J.). “If the defendant subsequently felt the need to try to further limit the scope of future treatment, they could have requested a supplemental IME, an EUO of the provider, or they could have had their expert conduct a peer review of all the post-IME treatment records. Instead, the defendant just denied the bills and relied on a single pre-treatment IME.” James J. Kim, L.Ac., P.C. v. Allstate Ins. Co., 75 Misc.3d 1230(A) (Civ. Ct., Kings County, 2022) (Moyne, J.). “However, there is no legal reason why claims for medical treatment submitted after an “IME cutoff” has been issued should be treated any differently than claims submitted prior to the IME. Therefore, a timely submitted claim for medical services rendered after the issuance of an IME cutoff is presumed to be medically necessary. The timely submission of a post-IME cutoff claim shifts the burden to the defendant to establish a factual basis and medical rationale for its determination that the treatment was unnecessary.” Amato v. State Farm Ins. Co., 30 Misc.3d 238, 242 (Dist. Ct., Nassau County 2013) (Hirsh, J.). Plaintiff established that the bills were timely and properly submitted to Defendant, Defendant admitted that it received them and did not issue payment. Plaintiff further established that Defendant’s denials lacked merit as a matter of law, see supra. Therefore, Plaintiff is to enter judgment for $1,034.12 plus statutory interest, statutory attorney fees, cost and disbursements. This constitutes the Decision and Order of the Court. Counsel for Plaintiff — Printed Name and Initials: Oleg Rybak — OR Counsel for Defendant — Printed Name and Initials: Jerry Hess — JH Dated: November 14, 2023
