Opinion
No. 2003-29 Q C.
Decided February 10, 2004.
Appeal by plaintiffs from an order of the Civil Court, Queens County (A. Gazzara, J.), entered March 27, 2002, denying their motion for summary judgment.
Order unanimously modified by providing that plaintiffs' motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,559.39, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees, and for all further proceedings on the remaining portion of the claim; as so modified, affirmed without costs.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
In this action to recover first-party no-fault benefits for medical treatment provided their assignor, plaintiffs moved for summary judgment. Defendant opposed and submitted nurses' unsworn reviews of the files which concluded that the treatments were medically unnecessary. Defendant contends that said reviews sufficed to create a triable issue of medical necessity. Plaintiffs rejected the proof as inadequate. In our view, the medical reviews failed to create a triable issue of material fact as to the treatment's medical necessity.
As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant ( e.g. Dombrowski v. Moore, 299 AD2d 949, 951) whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible ( Nucci v. Proper, 270 AD2d 816, 817, affd 95 NY2d 597; People v. Russell, 165 AD2d 327, 332; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]). Even were we to find that based on their "formal training or long observation and actual experience" the reviewers were qualified to state an expert opinion on the relevant issues ( People v. Monroe, 307 AD2d 588, 591), the nurses' affidavits failed to set forth an account of their training or observations and experience sufficient to establish the admissibility of the medical opinions set forth therein. In any event, none of the reviews were sworn, and for this reason also, they "did not constitute competent evidence sufficient to defeat [a motion for summary judgment]" ( Bourgeois v. North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526).
As to defendant's remaining defense, that the benefits sought exceeded those permitted by Workers' Compensation schedules (Insurance Law § 5108 [a]), we have held that by virtue of a timely claims denial an insurer is entitled to interpose the defense in opposition to a claimant's motion for summary judgment ( Park Health Ctr. v. Prudential Prop. Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d 11th Jud Dists]; see Insurance Law § 5108 [c] ["(n)o provider of health services . . . may demand or request any payment in addition to the (authorized) charges"]; Goldberg v. Corcoran, 153 AD2d 113, 119; e.g. Murali v. Upton, 175 Misc 2d 186, 187 [Civ Ct, NY County (1997)] [section 5108 (c) bars any no-fault claim exceeding "the legally permissible fee"]). Nevertheless, defendant failed to establish that any of the charges exceeded that permitted by law by evidentiary proof sufficient to create a triable issue of material fact.
Finally, summary judgment was properly denied as to the $54.74 claim. Plaintiffs did not allege the date defendant received the claim forms and failed to rebut defendant's documentary proof that both its initial and follow-up verification requests, dated February 22, 2001 and March 24, 2001, were timely (11 NYCRR 65.15 [d] [1], [2]). Absent the requested verification, an insurer is under no obligation to act on a claim ( New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 584; New York Presbyt. Hosp. v. American Tr. Ins. Co., 287 AD2d 699, 700), and without proof of their compliance with the verification requests, plaintiffs failed to prove prima facie a proper claim for no-fault benefits.
Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on $2,559.39, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; St. Clare's Hosp. v. Allstate Ins. Co., 215 AD2d 641), and for all further proceedings on the remainder of the claim.