Acupuncture Approach, P.C. v Tri State Consumer Ins. Co.

[*1] Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. 2017 NY Slip Op 51170(U) Decided on September 19, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570145/17

Acupuncture Approach, P.C., a/a/o Berky Lugo, Plaintiff-Appellant, -

against

Tri State Consumer Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered June 27, 2013, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Andrea Masley, J.), entered June 27, 2013, modified by reinstating plaintiff's claim for first-party no-fault benefits billed under CPT code 97039; as modified, order affirmed, with $10 costs.

Triable issues of fact are raised as to whether defendant-insurer properly denied plaintiff's no-fault claim billed under CPT code 97039, thus precluding summary judgment dismissing this claim. Defendant's submissions failed to establish prima facie its contention that the service is not reimbursable because it is a "physical medicine modality" and "outside the provider's specialty" (see TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept 2015]; see also Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996 [2008]). The remaining claims at issue on appeal were properly dismissed as premature, since it is undisputed that plaintiff failed to respond to the duly issued verification requests (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 19, 2017