Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co.

[*1] Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. 2012 NY Slip Op 51623(U) Decided on August 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2842 K C.

Essential Acupuncture Services, P.C. as Assignee of TAWANDA DEIRISH, Respondent,

against

NY Central Mutual Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 22, 2010, deemed from a judgment of the same court entered August 16, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 22, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,517.41.

ORDERED that the judgment is reversed, without costs, so much of the July 22, 2010 order as granted plaintiff's motion for summary judgment and denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 is vacated, plaintiff's motion for summary judgment is denied, and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint. A judgment [*2]was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff sought to recover upon six claim forms. As to all of the forms except for a claim form dated June 4, 2007, plaintiff failed to establish its prima facie entitlement to summary judgment, since it did not prove either that defendant had failed to pay or deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As to the June 4, 2007 claim, plaintiff did establish its prima facie entitlement to summary judgment; however, we find that defendant's proof was sufficient to raise a triable issue of fact as to whether defendant had timely and properly denied the claim on the ground that the fees charged exceeded the amounts set forth in the workers' compensation fee schedule (see e.g. East Coast Acupuncture, P.C. v New York Cent. Mut. Ins., 18 Misc 3d 139[A], 2008 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2008]). Thus, plaintiff's motion for summary judgment should have been denied in its entirety.

Defendant established that it had timely denied (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]) plaintiff's claims dated July 19, 2007, August 29, 2007, and October 11, 2007, respectively, on the ground of lack of medical necessity. In addition, defendant submitted an affirmed independent medical examination report which demonstrated a prima facie showing of lack of medical necessity for these services, which proof was not rebutted by plaintiff. Accordingly, the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for these three claims should have been granted (see 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]).

The branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the three remaining claims were properly denied, as defendant failed to conclusively establish its stated defenses that the fees charged exceeded the amounts set forth in the workers' compensation fee schedule (see 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]) and that there was an unmet personal injury protection deductible.

Accordingly, the judgment is reversed, so much of the July 22, 2010 order as granted plaintiff's motion for summary judgment and denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 is vacated, plaintiff's motion for summary judgment is denied, and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 are granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. [*3]
Decision Date: August 07, 2012