Megacure Acupuncture, P.C. v GEICO Ins. Co.

[*1] Megacure Acupuncture, P.C. v GEICO Ins. Co. 2012 NY Slip Op 51291(U) Decided on June 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-2863 K C.

Megacure Acupuncture, P.C. as Assignee of ANTHONY BRUNSON, Respondent,

against

GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff's motion seeking summary judgment upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006, and denied the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff's motion seeking summary judgment upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006 are denied, and the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006 are granted. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of plaintiff's motion seeking summary judgment upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006 and denied the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006.

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which was sufficient to establish that the denial of claim forms had been timely mailed (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]). With respect to plaintiff's claims for acupuncture services rendered from August 16 through October 25, 2006, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). With respect to plaintiff's claims for acupuncture services rendered from October 26, 2006 through December 11, 2006, defendant submitted a sworn independent medical examination (IME) report which concluded that there was a lack of medical necessity for those services. An affidavit by plaintiff's acupuncturist submitted in opposition to defendant's cross motion failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In view of the foregoing, defendant was entitled to summary judgment on the branches of its cross motion seeking summary judgment dismissing plaintiff's claims for acupuncture services rendered from August 16 through December 11, 2006. Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff's motion seeking summary judgment upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006 are denied, and the branches of defendant's cross motion seeking summary judgment dismissing the complaint [*3]
insofar as it sought to recover upon all of plaintiff's claims other than plaintiff's claim for services rendered on August 15, 2006 are granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012