Plaintiff AR Medical Rehabilitation, P.C. (referred to interchangeably as "plaintiff" or "AR Medical Rehabilitation") initiated this action against defendant Geico General Ins. Co. ("defendant") to recover assigned first party no fault benefits for services provided to assignors Celeste Russell, Robin Williams, and Edwina McDonald. This court conducted a bench trial on January 14, 2013, wherein the parties were represented by counsel.

Prior to commencement of the trial the defendant made an oral motion in limine to preclude Alexander Rozenberg, M.D. ("Dr. Rozenberg") from testifying and to dismiss the case based upon its contention that the instant action raises Mallela issues pursuant to State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]. The defendant claimed Dr. Rozenberg conspired with two individuals, Inna Polack and Alexander Polack (collectively, the "Polacks"), to fraudulently incorporate multiple medical professional service corporations, including AR Medical Rehabilitation. The defendant indicated that Dr. Rozenberg operated as the straw man for the illegal companies but the Polacks, who are lay persons and unauthorized to collect no fault benefits under New York law, actually owned the businesses. The defendant posited that there were prior rulings [*2]from different court proceedings that when taken together support its position.

The defendant presented the court and plaintiff's counsel with two decisions that were rendered at various stages of a RICO (Racketeer and Influenced Corrupt Organizations Act) action, wherein Allstate Insurance Company sued the Polacks, Dr. Rozenberg, two other individuals, three medical management companies (Mighty Management Group Inc., Mighty Management LLC, and Blue Wave Management), the plaintiff in this action, AR Medical Rehabilitation, and two other professional medical companies (AR Medical Art, P.C. and Yonkers Medical Art, P.C.). The documents submitted consisted of a decision rendered by United States District Court Judge Arthur Spatt ("Judge Spatt") (Allstate Insurance Company v Rozenberg, 590 F Supp 2d 384 [ED NY 2008]) and a Report and Recommendation prepared by Magistrate Judge Boyle ("Magistrate Boyle") (Allstate Insurance Company v Polack, 2012 WL 4489282 [ED NY 2012]) (collectively, "RICO action") (defendant's exhibits A and B, respectively). The defendant also submitted two decisions from the Supreme Court, Kings County, Criminal Term (People v Rozenberg, 21 Misc 3d 235, 862 NYS2d 895 [Sup Ct, Kings County 2008] and People v Rozenberg, Sup Ct, Kings County, April 24, 2009, McKay, J., Indictment No. 5545-06) as well as the Determination and Order from a hearing conducted by the State of New York Department of Health Board for Professional Medical Conduct (Matter of Alexander Rozenberg, BPMC No.10-271, December 17, 2010) (defendant's exhibits C-E, respectively). The defendant indicated that each proceeding evinced the same operative fact pattern of insurance fraud involving Dr. Rozenberg and AR Medical Rehabilitation.

Plaintiff's attorney countered that the cases were not dispositive on the issue of whether AR Medical Rehabilitation can pursue no fault benefits in a civil action, because none of the cases resulted in a determination that the company is a Mallela corporation. Plaintiff also argued that Judge Spatt's 2008 decision should not be considered with respect to the in limine issue since that decision addressed only whether certain causes of action should be dismissed. Additionally, plaintiff pointed out that Magistrate Boyle's report and recommendation was not binding, because there was no proof that it had been adopted by Judge Spatt.

The defendant, with the plaintiff's consent and the court's permission, was given an extension of time to produce Judge Spatt's decision adopting the recommendations of Magistrate Boyle. On the day of trial, the court reserved decision on the in limine issue and permitted plaintiff to call Dr. Rozenberg as a witness with the understanding that such testimony would be stricken and a verdict rendered in favor of the defendant if the court later determined, based on the documents submitted, that in limine relief is warranted. Subsequently, on January 19, 2013, the defendant submitted a third case (Allstate Insurance Company v Polack, US Dist Ct, SD NY, 08-CV-565, Spatt, J., 2012) from the RICO action.

The court is being asked to determine whether the defendant's motion in limine should be granted, or, if in limine relief is not warranted, whether the plaintiff met its prima facie case of entitlement to no fault benefits at trial?

After carefully reviewing the documents submitted, the court finds that the defendant has failed to demonstrate entitlement to the relief sought in its in limine application. While the decisions submitted are replete with discussion about an alleged conspiracy to defraud New York's No Fault regime, they are devoid of any finding that Dr. Rozenberg was a participant, or that AR Medical Rehabilitation was the fruit of a fraudulent scheme. Judge Spatt's 2008 decision addresses two motions to dismiss for failure to state a cause of action that were made by Dr. Rozenberg and other defendants in that case. Judge Spatt discussed the allegations contained in Allstate's complaint but did not reach a conclusion as to whether AR Medical Rehabilitation was an illegally formed [*3]company, nor did he render a decision concerning Dr. Rozenberg's involvement in the alleged illegal activity. Thus, there are no findings of fact or even an adverse inference that can be drawn from that decision that would have a binding effect on Dr. Rozenberg or the plaintiff in this case.

The defendant's reliance on Magistrate Boyle's report and recommendation and Judge Spatt's 2012 decision adopting that report is misplaced. Allstate moved for default judgment in the RICO action against some of the defendants, and Judge Spatt referred the matter to Magistrate Boyle to report and recommend a decision on the motion. Magistrate Boyle referenced Dr. Rozenberg and AR Medical Rehabilitation in his analysis but stated clearly at the outset of the report, that Allstate voluntarily dismissed the action against Dr. Rozenberg and AR Medical Rehabilitation (Allstate Insurance Company v Polack, 2012 WL 4489282 [ED NY 2012]). Consequently, there were no recommendations that would have an effect on any of the issues central to this trial, because neither Magistrate Boyle in his report, nor Judge Spatt in his order adopting that report (Allstate Insurance Company v Polack, US Dist Ct, SD NY, 08 Civ 565, Spatt, J., 2012) addressed the issue of Dr. Rozenberg or the corporate structure of AR Medical Rehabilitation on the merits.

Additionally, the criminal case and Determination and Order of the State Board for Professional Medical Conduct ("BPMC") run counter to the defendant's argument. In the criminal matter Dr. Rozenberg was indicted on multiple counts of falsifying business records and insurance fraud but convicted only of certain charges that pertain to an assignor not named in the instant action (see People v Rozenberg, 21 Misc 3d 235, 862 NYS2d 895 [Sup Ct, Kings County 2008] and People v Rozenberg, Sup Ct, Kings County, April 24, 2009, McKay, J., Indictment No. 5545-06). In this case, the doctor testified, on direct examination, that he had been indicted on several criminal charges but stated that fifty-six (56) of the charges resulted in either a dismissal or acquittal. Dr. Rozenberg admitted that he was convicted on one count of falsifying business records and one count of insurance fraud but explained that the convictions concerned a specific patient whose "initial evaluation" had been coded and erroneously billed as a "consultation" (tr. 16-19). Dr. Rozenberg indicated that there is a $25.00 difference between the two codes and that he was found guilty of falsifying that specific business record. Subsequently, by order dated December 17, 2010, the Board for Professional Medical Conduct determined that revocation of the doctor's license to practice medicine was the appropriate penalty for committing the aforementioned crimes. The court finds that while Dr. Rozenberg's convictions and license revocation may have some bearing on his credibility, they do not affect his ability to testify as a prima facie witness.

The court has discussed the defendant's substantive arguments and will now address the procedural issues attendant to this matter. Despite the defendant's characterization of the motion as one for in limine relief, the court finds that the application amounts to a motion for summary judgment. Essentially, the defendant alleged that there were no issues of fact based upon its contention that AR Medical Rehabilitation is a Mallela corporation and its true owners, the Polacks, are unauthorized to collect no fault benefits under New York law. The underlying policy of requiring that a summary judgment motion be made within a certain period of time is to prevent the practice of delaying such motions until the eve of trial (Pallotta v Saltru Associates Joint Venture, NY, 32 Misc 3d 1208(A) [Sup Ct, Kings County 2011] citing Miceli v State Farm Mutual Automobile Ins. Co., 3 NY3d 725, 726 [2004]). For that reason, inter alia, the Appellate Division Second Department has held that a motion in limine is an inappropriate substitute for a motion for summary judgment (In re Singer, 99 AD3d 802, 803 [2d Dept 2012]; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113 [2d Dept 2010] quoting Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811 [2d Dept 2003]). Furthermore, an in limine motion is generally made [*4]within the context of a jury trial to protect against the prejudice that could result if a jury hears inadmissible, irrelevant, or inflammatory evidence (Matter of PCK Dev. Co., LLC v Assessor of Town of Ulster, 43 AD3d 539 [3d Dept 2007], and State of New York v Metz, 241 AD2d 192, 198 [1st Dept 1998]; Caster v Increda-Meal, Inc., 238 AD2d 917, 918 [4th Dept 1997], see also 4 NY Prac., Com. Litig. in New York State Courts § 38:1-8 [3d Ed.]). In a bench trial, as is the case here, there is little use for that safeguard because the trier of fact would be exposed to the objectionable evidence whether such evidence is couched in an application for in limine relief or presented via documentary or testimonial evidence at trial. Indeed, the Court of Appeals has held that a Judge is uniquely capable of distinguishing the issues and making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making decisions (People v Moreno, 70 NY2d 403, 406 [1987]).

Based upon the preceding analyses, the defendant's motion in limine is denied.

The court will now address whether the plaintiff proffered sufficient evidence to meet its prima facie burden. Under New York No Fault law, a plaintiff establishes its prima facie case by demonstrating that it submitted a claim form to the defendant insurer, tendering proof of the fact and amount of the loss sustained, and that payment of no-fault benefits is overdue (Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). It is well settled that the plaintiff provider must call a witness at trial that can lay the proper foundation for admission of its claim forms into evidence under the business record exception to the hearsay rule (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 664 [2d Dept 2008]; Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud. Dists 2007]).

The court finds that Dr. Rozenberg's testimony was insufficient to lay the foundation necessary to establish that plaintiff's billing documents are business records. Dr. Rozenberg indicated that although Kevi Management Company ("Kevi") was located in the same building, it was a separate entity that handled all of the collection and billing tasks for AR Medical Rehabilitation (71, 81-82). Dr. Rozenberg stated that Kevi employees generated the bills and that he would sign or stamp them, but the witness failed to adequately describe the procedure that Kevi employees followed when creating bills (tr 25-26, 71). The doctor testified that after receiving the signed or stamped bill, a Kevi employee (1) inserted bills in an envelope, (2) placed the envelopes in a plastic bag, (3) delivered the entire package to the post office for mailing, then (4) recorded the mailing of each bill in a notebook that was kept in the office (tr 24, 28).

Additionally, the doctor's testimony was laden with inconsistencies. Dr. Rozenberg initially stated that he and the owner of the Kevi Company established the billing procedures together, but he later admitted on cross-examination that he provided no input on the process (tr 72-73). The doctor testified that he personally checked claim forms for accuracy before signing or stamping them, and he averred that there were no deviations from that practice (tr 20, 33). However, on voir dire, the witness conceded that there were exceptions to that rule when presented with a bill that was neither signed nor stamped by him (tr at 68). Dr. Rozenberg attempted to mitigate the discrepant testimony by explaining that he signed or stamped only the bills generated from services he provided and the chiropractor, physical therapist, acupuncturist, and orthopedic surgeon were responsible for signing or stamping their own bills (tr 69, 74-75). Dr. Rozenberg acknowledged that he did not check the other specialists' bills and even answered in the affirmative when asked whether he was only concerned about his own bills (tr at 74). The doctor testified that he supervised the billing process but later acknowledged that the Kevi Company employed its own supervisors (tr at 35). At one point, Dr. Rozenberg even delineated his umbrella of responsibility from that of the billers by stating [*5]that he was responsible for ensuring the bills were correct, while Kevi employees were responsible for mailing the bills within the requisite period of time (tr at 82).

Based upon the inconsistencies and gaps in Dr. Rozenberg's testimony and the plaintiff's failure to produce a witness from the Kevi Company, the court finds that plaintiff failed to lay the proper foundation for admission of the documents in evidence under the business record exception to the hearsay rule (see CPLR 4518[a]; compare Art of Healing Medicine, P.C. v Travelers Home and Marine Ins. Co., 55 AD3d 644 [2d Dept 2008] and Viviane Etienne Medical Care, P.C., 31 Misc 3d 21 [2d 11 13 Jud Dists 2011] with Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 [2d Dept 2010]. Consequently, the court hereby rescinds its decision to admit plaintiff's bills into evidence as business records on the day of trial.

Even if the documents were allowed in evidence, they would be accorded little, if any, weight, because plaintiff failed to proffer sufficient evidence to demonstrate that Dr. Rozenberg actually checked the bills for accuracy. The claim forms at issue in this case contain charges for services that run the gamut, including office visits, supplies, therapeutic exercises, and range of motion tests. Dr. Rozenberg did not testify that he provided those services, and there is conflicting testimony as to whether he supervised, signed, stamped, or checked the accuracy of bills from services rendered by other professionals in the office.

Accordingly, the court awards a verdict in favor of the defendant.

This constitutes the Decision and Order of the court.

March 27, 2013_____________________________

HON. INGRID JOSEPH

Acting Supreme Court Justice