Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co.

[*1] Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. 2014 NY Slip Op 51766(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570325/14

Easy Care Acupuncture, P.C., a/a/o Olevia Moore, Plaintiff-Appellant, -

against

21 Century Advantage Ins. Co. Defendant-Respondent.

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County,(Jennifer G. Schecter, J.), dated July 16, 2013, as granted defendant's motion for summary judgment dismissing plaintiff's no-fault claim in the amount of $355.

Per Curiam.

Order (Jennifer G. Schecter, J.), dated July 16, 2013, insofar as appealed from, reversed, with $10 costs, and plaintiff's claim for first-party no-fault benefits in the amount of $355 reinstated.

Defendant's motion for summary judgment dismissing plaintiff's first-party no-fault claim seeking payment of $355 - stemming from acupuncture services rendered by plaintiff on December 1, 2009, December 10, 2009 and January 7, 2010 - should have been denied. Defendant failed to demonstrate, prima facie, that its denials were properly mailed (see Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1999]). In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant's claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]), merely stating that items placed in its "mail bin" are picked up by a nonparty entity - Pitney Bowes Services, Inc. ("Pitney Bowes") - which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery. Nor were these deficiencies remedied by defendant's submission in its reply papers below of an affidavit from a Pitney Bowes representative (see Batista v Santiago, 25 AD3d 326 [2006]).

Moreover, even beyond defendant's shortcomings in proof concerning the mailing issue, the report of defendant's peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff's assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she "feels worse" after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate [*2]all triable issues regarding the medical necessity of continued acupuncture treatment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: December 17, 2014