Meridian Acupuncture Care, P.C. v Mercury Cas. Co.

[*1] Meridian Acupuncture Care, P.C. v Mercury Cas. Co. 2015 NY Slip Op 50681(U) Decided on May 1, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARA
P.J., IANNACCI and GARGUILO, JJ.

Meridian Acupuncture Care, P.C. as Assignee of CARMEN BAEZ, Respondent, NO. 2013-2078 S C

against

Mercury Casualty Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated August 26, 2013. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint is granted except as to so much of the complaint as sought to recover for services provided on June 13 to July 9, 2008, July 11 to July 16, 2008, July 30 to August 13, 2008, October 17 to November 5, 2008, and December 31, 2008; as so modified, the order is affirmed, without costs.

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 District Court as denied the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff had raised a triable issue of fact with respect to the medical necessity of the treatment at issue.

With respect to the bills for services provided on June 13 to July 9, 2008, July 11 to July 16, 2008, July 30 to August 13, 2008, October 17 to November 5, 2008, and December 31, 2008, defendant's moving papers failed to make a prima facie showing that the billed-for services were not medically necessary, as defendant relied upon a report of an independent medical examination that had been performed on a patient who was not plaintiff's assignor (see generally Avicenna Med. Arts, P.L.L.C. v GEICO Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52010[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

With respect to the bills for services provided on April 25 to April 30, 2008, May 2 to May 12, 2008 and May 23 to June 4, 2008, the affidavit of defendant's claims representative established 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]). Furthermore, as defendant demonstrated that it had fully paid plaintiff for the treatment at issue in accordance with the workers' compensation fee schedule, the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Finally, with respect to the remaining six bills, for services purportedly provided from August 15 to August 27, September 5 to September 17, October 1 to October 10, November 7 to November 12, and December 3 to December 12, 2008 and January 23, 2009, the affidavit of defendant's claims representative contained more than a mere conclusory denial of receipt of the claim forms allegedly mailed to it (cf. Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and sufficiently established that defendant had not received those claim forms. In the absence of a sworn statement by someone with personal knowledge attesting to plaintiff's submission of the claim forms at issue, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon these claims (see Natural Therapy Acupuncture, P.C. v Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers' Ins. Co., Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists 2009]).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint is granted except as to so much of the complaint as sought to recover for services provided on June 13 to July 9, 2008, July 11 to July 16, 2008, July 30 to August 13, 2008, October 17 to November 5, 2008, and December 31, 2008.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: May 01, 2015