Bronze Acupuncture, P.C. v Mercury Ins. Co.

[*1] Bronze Acupuncture, P.C. v Mercury Ins. Co. 2009 NY Slip Op 51219(U) [24 Misc 3d 126(A)] Decided on June 12, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-639 Q C.

Bronze Acupuncture, P.C. as assignee of LAVEL FOLKS, Respondent,

against

Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated February 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant's motion as sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007.

Order, insofar as appealed from, reversed without costs and so much of defendant's motion as sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007 granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant's motion which, insofar as is relevant to this appeal, sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007, finding that the "only issue remaining for trial is medical necessity. Both plaintiff and defendant established their prima facie case." The instant appeal by defendant ensued.

Contrary to plaintiff's contention, the affidavit of defendant's claim representative established that the denial of claim forms, which denied the subject claims on the ground of lack of medical necessity based upon an independent medical examination (IME) report, were timely mailed in accordance with defendant's standard office practice or procedure used to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff's treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity. As a result, defendant's motion for summary judgment dismissing the claims at issue should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [App Term, 1st Dept 2008]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 2009