334 Grand Concourse Med., P.C. v Plymouth Rock Assur.

Civil Court of the City of New York, Kings County

Decided on April 15, 2026

Index No. CV-730919-22/KI

Sandra Elena Roper, J.

Recitation as required by CPLR § 2219(a) of the papers considered in review of this Motion:

Papers:

P's Motion for Summary Judgment 1-2

D's Cross Motion for summary Judgment 3-4

P's Affirmation in Opposition 5

D's Reply 6

Other

Upon the foregoing cited papers, the Decision/Order on this Plaintiff's Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment are decided as follows:

Plaintiff's Motion is granted to the extent that that Plaintiff established its prima facie entitlement to relief pursuant to CPLR § 3212(g). In contrast, Defendant failed to raise a triable issue of fact with respect to its asserted policy exhaustion defense. Most notably, Defendant failed to submit competent, admissible proof sufficient to lay a proper business records foundation for either the purported insurance policy or the alleged exhaustion materials. Defendant did not provide an affidavit from an underwriter, custodian, or any other individual with personal knowledge of Defendant's record-keeping practices and procedures capable of authenticating the policy, its terms, or its limits. Nor did Defendant establish that any affiant was familiar with Defendant's business practices so as to render the proffered documents admissible under the business records exception. Equally fatal, Defendant failed to establish when the purported policy exhaustion ledger or spreadsheet was created, by whom it was made, [*2]how it was generated, or whether it was made in the regular course of business at or about the time of the underlying transactions recorded therein. The submission of a paper-form ledger, without a proper evidentiary foundation, is insufficient to establish exhaustion as a matter of law or to defeat Plaintiff's prima facie showing. A conclusory submission of records, untethered to a competent foundational affidavit, lacks probative value and is inadmissible for summary judgment purposes (see Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330 [4th Dep't 2009]).

Defendant's Cross-Motion is DENIED because material triable issues of fact plainly remain.

First, Defendant failed to establish, as a matter of law, the timely issuance and mailing of its denials. Plaintiff's affiant expressly averred that Plaintiff "responded to and mailed all requested documentation, to: Defendant, Plymouth Rock Assurance, at PO Box 900, Lincroft, NJ 07738 on 10/14/2021" (see NYSCEF Doc. No. 20). Yet, notwithstanding Plaintiff's documented response, Defendant did not issue its denials until January 18, 2023, well more than thirty (30) days after Plaintiff's submission of the requested materials (see NYSCEF Doc. No. 17). On this record, Defendant failed to eliminate all triable issues concerning whether the denials were timely issued and mailed in accordance with the governing No-Fault time frames. At a minimum, the stark discrepancy between Plaintiff's proof of submission and Defendant's substantially delayed denials presents a classic issue of fact that cannot be resolved on motion practice and must instead be determined at trial.

Second, with respect to Defendant's affirmative defense of outstanding verification, this Court likewise finds that a material triable issue of fact exists, precluding summary disposition in Defendant's favor. In opposition to Defendant's position, Plaintiff's owner submitted a rebuttal affidavit expressly alleging that Plaintiff timely and fully complied with Defendant's verification requests. That sworn submission is sufficient to raise a factual dispute as to whether any requested verification in fact remained outstanding, and thus whether Defendant was entitled to continue tolling or withholding payment on that basis. Moreover, the Court notes that the form and substance of Plaintiff's affidavit are not novel, defective, or legally insufficient. To the contrary, substantially similar affidavit language and format have previously been recognized as adequate by the Appellate Term, Second Department, in the No-Fault context (see, e.g., Mollo Chiropractic, PLLC v. Farmington Cas. Co., 53 Misc 3d 138 [A] [App. Term, 2d Dep't 2016]). Accordingly, Defendant failed to eliminate all material issues of fact regarding Plaintiff's alleged compliance with the verification requests, and that issue must be resolved at trial.

Finally, with respect to Defendant's affirmative defense predicated upon the fee schedule, this Court likewise finds that material triable issues of fact exist, thereby precluding summary disposition in Defendant's favor. Although Defendant contends that it supported its position through the submission of a Certified Coder's Affidavit (see NYSCEF Doc. No. 18), and further argues that Plaintiff failed to submit an affidavit from a similarly credentialed coder, that contention is without merit. Plaintiff did, in fact, submit a rebuttal fee schedule affidavit from its owner (see NYSCEF Doc. No. 36), which directly challenged and disputed the analysis set forth by Defendant's Certified Coder. That sworn submission was sufficient to place Defendant's fee schedule calculations and conclusions squarely in dispute. Moreover, under CPLR § 3212, the function of the Court on a motion for summary judgment is one of issue-finding, not issue-determination. /OR

Defendant's argument that Plaintiff is required, as a matter of law, to submit a rebuttal [*3]affidavit exclusively from a "Certified Coder" is rejected. Pursuant to New York law, the admissibility and probative value of expert opinion testimony does not merely turn on the possession of any particular title or certification alone, but rather on whether the witness possesses the requisite skill, training, education, knowledge, experience and history of expertise to render the opinion that of an expert opinion. An expert opinion affiant is merely required to demonstrate to the court expertise in the attendant subject area. Plaintiff's argument as to quasi-expert affiant opinion is similarly rejected. The affidavit must be unequivocal as to whether the affiant is deemed an expert, not a quasi-expert. Herein, the affiant's expertise as to the subject matter of fee coding (billing practices, coding issues, fee schedule framework, and the subject services at issue) is deemed qualified by Plaintiff's rebuttal fee coding expert affiant, notwithstanding lack of the title of "Certified Coder". Indeed, as here, dueling expert testimonies are to be determined by fact-finders at trial not in a motion for judgment as a matter of law. Thus, upon the shifting of the burden of Defendant's fee schedule motion for summary judgment, non-movant Plaintiff satisfies its burden of rebuttal to defeat Defendant's motion. The competing expert narratives raise a triable issue of fact as to the proper application of the relevant fee schedule.

This constitutes Decision and Order of The Court.

Dated: April 15, 2026

Brooklyn, New York

Honorable Sandra Elena Roper

Judge, Civil Court, Kings County