The Plaintiff commenced this action on April 4, 2007 seeking to recover no-fault first party benefits for acupuncture services provided to its assignor between February 20, 2002 and May 9, 2002, following a motor vehicle accident of June 5, 2001. Issue was joined on or about May 17, 2007. The Defendant now moves for summary judgment pursuant to CPLR § 3212. The Plaintiff opposes the motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court's function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant's failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)

The Defendant will be precluded from raising its defense of lack of medical [*2]necessity if it fails to demonstrate a timely and proper denial of the Plaintiff's claim within thirty (30) days of its receipt. Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274, 660 NYS2d 536 (1997); Mt. Sinai Hospital v. Triboro Coach Incorporated, 263 AD2d 11, 699 NYS2d 77 (2nd Dept. 1999); Church Avenue Medical Care, P.C. v. Allstate Insurance Company, 189 Misc 2d 340, 731 NYS2d 582 (App. Term 2nd Dept. 2001); Struhl v. Progressive Casualty Insurance Company, 7 Misc 3d 138(A), 801 NYS2d 242 (App. Term 9th and 10th Jud. Dists. 2005) The threshold question presented, therefore, is whether or not the Defendant has tendered "either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); See also: New York and Presbyterian Hospital v. Allstate Insurance Co., 29 AD3d 547, 814 NYS2d 687 (2nd Dept. 2006) In support thereof, the Defendant submits the affidavit of Shalonne O'Tey-Simon, one of Defendant's Claims Representatives, and Daudley Fanfan, a Claims Support Services Supervisor of the Defendant.

Ms. O'Tey-Simon indicates that she is a Claims Representative in the Defendant's Ballston Spa, New York no-fault office. Ms. O'Tey-Simon alleges that she is the custodian of the records contained in the Defendant's file relating to this matter and that she is "fully familiar with the facts and circumstances related to the above-captioned matter based upon [her] review of the file and computer records maintained by [her] office." (O'Tey-Simon affidavit 6/28/07, ¶ 3) Based upon that review, although she neither alleges to have actual knowledge of the mailing nor describes a standard office practice or procedure for the mailings, Ms. O'Tey-Simon avers that "the denials were generated on the date stated in the bottom left hand corner marked date' ... are generated at or near the time the decision is made to deny the bill ... [and] were sent from the Claim Representative to our Claims Support Services personnel for mail processing." (O'Tey-Simon affidavit 6/28/07, ¶ 9) Ms. O'Tey-Simon concludes that "the bills in question were timely denied." (O'Tey-Simon affidavit 6/28/07, ¶ 3) Ms. O'Tey-Simon's conclusory statements regarding the mailing of the denials here in question are insufficient to establish their mailing. Westchester Medical Center v. Countrywide Insurance Company, __ AD3d __, __ NYS2d __, 2007 NY Slip Op. 09024 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005)

Daudley Fanfan, represents that he is a Claims Support Services Supervisor in the Defendant's Melville, New York office and that his duties include supervising Claim Service Assistants. Mr. Fanfan avers that he is personally familiar with the Defendant's practices and procedures in processing no-fault claims in the Melville, New York office and is responsible for making sure that those procedures are followed. Mr. Fanfan describes that practice as follows: The Defendant's denial forms (NF-10s) are completed by Claim Representatives and/or Claim Processors on computers and printed directly to Claim Service Assistants in the "CSA pool." When a Claim Service Assistant retrieves the NF-10 from a printer he or she must check to make sure the document is properly dated. If the NF-10 is based upon an examination conducted by a doctor of the Defendant's choosing, the NF-10 is placed in a windowed envelope, along with the doctor's report, and brought to the mail room within twenty-four (24) hours. In the event copies must also be mailed, they are place in non-windowed envelopes and a Claims Service Assistant hand addresses the envelope. All mail received in the mail room by 3:00 p.m. is stamped and [*3]picked up by All American Courier, on the same day and brought to the Melville, New York post office for mailing that day. Mail received by the mail room after 3:00 p.m. is similarly picked up and mailed the following day. Mr. Fanfan concludes that "In light of these procedures, all correspondence and documents, including NF-10s and requests for verification, are processed and properly addressed and mailed to the proper parties either on the date of the particular document or one business day thereafter." (Fanfan Affidavit 6/27/07, ¶ 8)

When stripped of all of its excess verbiage, which is designed to meet the aforesaid proof of mailing requirements, all that Mr. Fanfan actually alleges is that, at the Melville, New York office, an NF-10 is retrieved from a printer, placed in an envelope, brought to the mail room and picked up by a courier who delivers the envelope to the United States Postal Service. It is the opinion of this court that while this may describe a "standard office practice and procedure" Residential Holding Corp. v. Scottsdale Insurance Company, supra ., it does not describe one "used to ensure that items were properly addressed and mailed." id.; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) ["office practice must be geared so as to ensure the likelihood that a notice ... is always properly addressed and mailed."]

Absent from the Defendant's alleged office practice and procedure is any indication that there exists a practice of comparing the names and addresses on the NF-10s with that of the Plaintiff's billing, or the existence of a mailing list used to compare the names and addresses on the NF-10s with the items mailed, or whether a list is maintained indicating the number of NF-10s generated on a given day along with some identification of the matters in which the NF-10s were generated, or whether anyone routinely checked to see if the total number of envelopes mailed matched the number of NF-10s generated on a particular day, or a certificate of mailing identifying the items allegedly delivered to the United States Postal Service. See: Matter of Lumbermens Mut. Casualty Co., 135 AD2d 373, 521 NYS2d 432 (1st Dept.1987); State-Wide Insurance Co. v. Simmons, 201 AD2d 655, 608 NYS2d 274 (2nd Dept.1994); Clark v. Columbian Mut. Life Insurance Co., 221 AD2d 227, 633 NYS2d 311 (1st Dept.1995); L.Z.R. Raphaely Galleries, Inc. v. Lumbermens Mutual Casualty Co., 191 AD2d 680, 595 NYS2d 802 (2nd Dept.1993) Without such safeguards, notwithstanding the fact that the Defendant follows the same procedure, there is no way for the Defendant, or the court for that matter, to determine whether or not all NF-10s generated by the Defendant on a particular day are actually mailed. The procedure Mr. Fanfan describes does not take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office. If this were to occur, under the practices and procedures described by Mr. Fanfan, no one would know and the Defendant would have no way of tracking the lost NF-10. Compare: Presutto v. Travelers Insurance Company, 17 Misc 3d 1121(A); 2007 NY Slip Op. 52095

In addition to these problems with the Defendant's proof of mailing, nowhere do Mr. Fanfan or Ms. O'Tey-Simon indicate how they know the office practice and procedure Mr. Fanfan describes was followed in this case. See: Allstate Social Work and Psychological Svcs PLLC v. GEICO General Insurance Co., 6 Misc 3d 1010(A), 800 NYS2d 341 (Civ. Ct. Kings Co. 2005); Capri Medical, P.C. v. Auto One Insurance Company, 14 Misc 3d 1205(A), 836 NYS2d 483 (Civ.Ct. Kings Co. 2006) This is particularly troubling, given the fact that neither Mr. Fanfan nor Ms. O'Tey-Simon indicate they were employed by the Defendant and familiar with the Defendant's office practices and procedures in February 2002 when the first of the [*4]denials in question were allegedly mailed. Similarly, although Mr. Fanfan indicates that he is fully familiar with the practices and procedures for mailing used in the Defendant's Melville, New York office and Ms. O'Tey-Simon indicates that she is the custodian of the file in this matter, which is located in the Defendant's Balston Spa, New York office, neither of them indicate from which office the denials herein were allegedly mailed, when, in fact, the Defendant's denials bear the address of the Defendant's Parsippany, New Jersey office.

For these reasons alone, this court finds that there are numerous questions of fact concerning the Defendant's timely denial of the claims here in issue, which would preclude the granting of summary judgment to the Defendant. The above notwithstanding, the Defendant's proof of the alleged lack of medical necessity is similarly wanting at this time.

The Defendant's admission of receipt of the Plaintiff's claims and the absence of any challenge by the Defendant to either the propriety or timeliness of same establishes the medical necessity of the subject services in the first instance. All County Open MRI & Diag. Radiology P.C. v. Travelers Insurance Co., 11 Misc 3d 131(A), 815 NYS2d 496 (App. Term 9th and 70th Jud. Depts. 2006); Damadian MRI in Elmhurst, P.C. v. Liberty Mutual Insurance Co., 2 Misc 3d 128(A), 784 NYS2d 919 (App. Term 9th and 10th Jud. Dists. 2003). Given the presumption of medical necessity which attaches to the Defendant's admission of the Plaintiff's timely submission of proper claim forms, the burden shifts to the Defendant to submit proof in admissible form establishing that the acupuncture treatment in question was not necessary. Amaze Medical Supply Inc. v. Eagle Insurance Company, 2 Misc 3d 128(A), 784 NYS2d 918 (App. Term 2nd and 11th Jud. Dists. 2003); West Tremont Medical Diagnostic, P.C. v. GEICO Insurance Company, 13 Misc 3d 131(A), 824 NYS2d 759 (App. Term 2nd and 11th Jud. Dists. 2004).

At issue here are four (4) bills for acupuncture services rendered between February 20, 2002 and May 9, 2002. Assuming that they were timely made, the Defendant's denials of these services are based upon the report of a physical examination performed on behalf of the Defendant, by Ping Zhu, OMD, L.Ac. on February 4, 2002, which concluded "[T]here is no need for further treatment from an acupuncture point of view." The opinion of Mr. Zhu, who is a New York State Licensed Acupuncturist and Board Certified in Chinese Herbal Medicine, was based upon a physical examination he conducted on February 4, 2002 in which he allegedly found the Plaintiff's assignor to have a negative traditional Chinese medicine examination, a negative orthopedic examination, and a negative neurological examination. Mr. Zhu also lists some seventeen (17) medical records he reviewed.

The Plaintiff does not submit any medical evidence which attempts to rebut Mr. Zhu's conclusion. The Plaintiff does allege, however, that the Defendant's proof fails to prima facie demonstrate the lack of medical necessity for the treatment in question. The Plaintiff sets forth several arguments in support of this position.

The Plaintiff first argues that Mr. Zhu's report is "fraught with hearsay and cannot satisfy State Farm's burden" (Armao Affirmation 10/11/07, ¶ 9) because it relies upon unsworn reports which were not annexed to the Defendant's papers. Although the Defendant may rely of the unsworn records and reports of the Plaintiff's assignor's treating physicians, Raso v. Statewide Auto Auction, Inc., 262 AD2d 387, 691 NYS2d 158 (2nd Dept. 1999); Torres v. Micheletti, 208 AD2d 519, 616 NYS2d 1006 (2nd Dept. 1994); Vignola v. Varrichio, 243 AD2d 464, 662 NYS2d 831 (2nd Dept. 1997); Home Care Ortho. Med. Supply, Inc. v. American [*5]Manufacturers Mutual Insurance Co., 14 Misc 3d 139(A), 836 NYS2d 499 (App.Term 1st Dept. 2007); Cross Continental Medical, P.C. v. Allstate Insurance Company, 13 Misc 3d 10, 822 NYS2d 356 (App.Term 1st Dept. 2006), there is nothing in this record to indicate how the documents listed by Mr. Zhu are related to the Plaintiff's assignor or from whom they were obtained. Nevertheless, Mr. Zhu does not indicate that he relied upon these records and reports in reaching his determination, which, according to his report was based upon the alleged findings of his physical examination conducted on February 2, 2002.

The Plaintiff next argues that the allegedly unsworn and un-submitted documents actually "create triable issues of fact as they contain findings contrary to the IME review." (Armao Affirmation 10/11/07, ¶ 16) While Mr. Zhu's mere reference to the unsworn or unaffirmed reports is sufficient to permit the Plaintiff to rely upon and submit them in opposition to the motion, Kearse v. New York City Transit Authority, 16 AD3d 45, 789 NYS2d 281 (2nd Dept. 2005); Amaze Medical Supply Inc. v. Allstate Insurance Company, 12 Misc 3d 139(A), 824 NYS2d 760 (App.Term 2nd and 11th Jud. Dists. 2006); Ayzen v. Melendez, 299 AD2d 381, 749 NYS2d 445 (2nd Dept. 2002), the Plaintiff does not do so. Assuming the Defendant had made a prima facie demonstrated the lack of medical necessity, the Plaintiff cannot refute this showing through nothing more than counsel's conclusory assertion that reports which are not before the court create triable issues of fact.

Finally, the Plaintiff argues that the Defendant is required, but has failed, to submit evidence of the applicable generally accepted medical/professional standard and the Plaintiff's departure therefrom. The Plaintiff is correct. Adopting the standard set forth in Fifth Avenue Pain Control Center v. Allstate Insurance Company, 196 Misc 2d 801, 766 NYS2d 748 (Civ. Ct. Queens Co. 2003), this court holds: To find treatment or services are not medically necessary, it must be reasonably shown by medical evidence, in consideration of the patient's condition, circumstances, and best interest of the patient, that the treatment or services would be ineffective or that the insurer's preferred health care treatment or lack of treatment would lead to an equally good outcome.

See also: Hellander, M.D., P.C. v. State Farm Insurance Company, 6 Misc 3d 579, 785 NYS2d 896 (Civ. Ct. Richmond Co. 2004) To meet its burden, at a minimum, the Defendant must establish a factual basis and medical rationale for its asserted lack of medical necessity, Nir v. Allstate Insurance Company, 7 Misc 3d 544, 796 NYS2d 857 (Civ. Ct. Kings Co. 2005), which is supported by evidence of the generally accepted medical/professional practices, A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, 7 Misc 3d 1018(A), 801 NYS2d 229 (Civ. Ct. Kings Co. 2005), and that the services rendered were inconsistent with those accepted practices. A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, 11 Misc 3d 1057(A), 815 NYS2d 493 (Civ. Ct. Kings Co. 2006). Generally accepted practice has been recognized to be "that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling."City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, 3 Misc 3d 608, 77 NYS2d 241 (Civ. Ct. Kings Co. 2004); A.B. Medical Services, P.L.L.C. v. New York Central Mutual Fire Insurance Company, supra .; A.R. Medical Art, P.C. v. State Farm Mutual Automobile Insurance Company, supra . The conclusory opinion of Mr. Zhu, standing alone, is insufficient to demonstrate the lack of medical necessity. City Wide Social Work & Psy. Serv. P.L.L.C. v. Travelers Indemnity Company, supra .; Ultimate Medical Supplies v. Lancer Insurance Company, 7 Misc 3d 1002(A), 801 NYS2d 243 (Civ. Ct. Kings Co. 2004) [*6]

While Mr. Zhu reports that his traditional Chinese medicine examination, orthopedic examination and neurologic examination were negative, he fails to set forth his qualifications to conduct these latter examinations or to offer an opinion based thereon, which goes to the issue of credibility and weight to be accorded his opinions by the trier of facts, Hill v. New York Hospital, 277 AD2d 117, 716 NYS2d 568 (1st Dept. 2000); Williams v. Halpern, 25 AD3d 467, 808 NYS2d 68 (1st Dept. 2006). Moreover, Mr. Zhu fails to set forth what objective tests he performed to support his findings and conclusion. Under these circumstances, it cannot be said that the Defendant has properly established a prima facie showing of lack of medical necessity. Bedford Park Medical Practice P.C. v. American Transit Insurance Co., 8 Misc 3d 1025(A), 806 NYS2d 443 (Civ.Ct. Kings Co. 2005); cf. Hanna v. Alvarado, 16 AD3d 624, 791 NYS2d 440 (2nd Dept. 2005); Black v. Robinson, 305 AD2d 438, 759 NYS2d 741 (2nd Dept. 2003); Gamberg v. Romeo, 289 AD2d 525, 736 NYS2d 64 (2nd Dept. 2001)

Accordingly, the Defendant's motion for summary judgment is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

December 3, 2007

___________________________

Andrew M. Engel

J.D.C.