Utica Acupuncture, P.C. v Interboro Ins. Co.

[*1] Utica Acupuncture, P.C. v Interboro Ins. Co. 2013 NY Slip Op 50643(U) Decided on April 18, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
571041/12.

Utica Acupuncture, P.C. a/a/o Juarez Omar, Plaintiff-Respondent, - -

against

Interboro Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered August 15, 2012, as denied, in part, its motion for summary judgment dismissing the complaint or, alternatively, to compel discovery.

Per Curiam.

Order (Raul Cruz, J.), entered August 13, 2012, insofar as appealed from, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted in toto.

In opposition to the defendant-insurer's prima facie showing of entitlement to judgment dismissing plaintiff's no-fault claims in connection with services rendered from May 11, 2009 through July 9, 2009, plaintiff failed to raise a triable issue of fact. The affidavit of plaintiff's principal, while explaining in general terms the office procedure followed by plaintiff in "log[ging]" verification requests into its "billing program," failed to disclose the results of any search the affiant may have made of the billing program to ascertain whether the verification letters shown to have been sent by defendant had been logged in by plaintiff as received (see Comprehensive Neurological Servs., PA v Tri-State Consumer Ins., 35 Misc 3d 144[A], 2012 NY Slip Op 50950[U] [App Term, 1st Dept 2012]). Plaintiff's bald denial of receipt of defendant's verification requests was insufficient on this record to raise a triable issue.

Defendant also made a prima facie showing of entitlement to summary judgment dismissing plaintiff's claims for services rendered from July 20, 2009 through September 10, 2009. In this regard, defendant submitted, inter alia, an independent medical examination report of its examining acupuncturist, which set forth a factual basis and medical rationale for the acupuncturist's stated conclusion that the assignor's injuries were resolved and that there was no need for further acupuncture treatment.

In opposition, plaintiff failed to raise a triable issue, relying largely on an affidavit of its principal, who, while broadly describing his approach to the practice of traditional Chinese medicine, failed to set forth any allegations as to the assignor's claimed injuries or the medical [*2]necessity of the acupuncture treatments here at issue (see generally CPT Medical Services, P.C. v New York Cent. Mut, Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 18, 2013