Raz Acupuncture, P.C. v Praetorian Ins. Co.

[*1] Raz Acupuncture, P.C. v Praetorian Ins. Co. 2012 NY Slip Op 50305(U) Decided on February 14, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1642 K C. -x

Raz Acupuncture, P.C. as Assignee of Diana Quiroz, Respondent,

against

Praetorian Ins. Co., Appellant. -x

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 23, 2010. The order, insofar as appealed from, in effect, denied defendant's cross motion for summary judgment dismissing the complaint and found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by striking the provision thereof finding that plaintiff had established its prima facie case, and by providing that the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's claims for dates of service from October 30, 2007 through January 30, 2008 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding for all purposes in the action, that plaintiff had established its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and found, implicitly pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case. [*2]

We note initially that plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of the president of its third-party biller was insufficient to establish that the documents annexed to plaintiff's motion papers were admissible pursuant to CPLR 4518 (a) (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff was not entitled to a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case.

In support of defendant's cross motion for summary judgment, defendant submitted, among other things, an affidavit of its claims examiner, which established that the claim denial forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant, however, did not proffer sufficient evidence to warrant the dismissal of plaintiff's claim for the initial consultation on August 29, 2007 (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), nor did it establish as a matter of law that the amounts sought by plaintiff for acupuncture treatment rendered from August 30, 2007 through October 25, 2007 were in excess of the amounts permitted by the workers' compensation fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; see also Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51175[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied the branch of defendant's cross motion seeking the dismissal of these claims.

In support of its cross motion, defendant submitted a sworn report of the licensed acupuncurist/chiropractor who had conducted an independent medical examination of plaintiff's assignor on October 16, 2007. The report set forth a factual basis and medical rationale for the examiner's determination that there was no need for further acupuncture treatment. Since defendant's showing that the services rendered from October 30, 2007 through January 30, 2008 were not medically necessary was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing plaintiff's claims for these dates of service (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order of the Civil Court is modified by striking the provision thereof finding that plaintiff established a prima facie case and by providing that the branch of defendant's cross motion for summary judgment seeking to dismiss plaintiff's claims for dates of service from October 30, 2007 through January 30, 2008 is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*3]
Decision Date: February 14, 2012