MIA Acupuncture, P.C. v GEICO Ins. Co.

[*1] MIA Acupuncture, P.C. v GEICO Ins. Co. 2010 NY Slip Op 51731(U) [29 Misc 3d 128(A)] Decided on October 1, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1361 Q C.

MIA Acupuncture, P.C. as Assignee of Cherry Ann Mellad, Respondent,

against

GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 23, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 23, 2009 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,559.70.

ORDERED that the judgment is reversed without costs, the order granting plaintiff's motion for summary judgment is vacated, plaintiff's motion for summary judgment is denied, upon searching the record, partial summary judgment is granted to defendant dismissing the seventh cause of action and so much of the sixth cause of action as sought to recover the unpaid balance of $105.21 on claims that were reduced pursuant to the workers' compensation fee schedule, and the matter is remitted to the Civil Court for all further proceedings on the first through fifth causes of action and so much of the sixth cause of action as sought to recover upon a claim in the sum of $124.14.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it had timely denied reimbursement for most of the services at issue for lack of medical necessity based upon an independent medical examination and that it had properly paid for the remainder of the services at issue at a rate reduced pursuant to the workers' compensation fee schedule. The Civil Court granted plaintiff's motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Plaintiff established its prima facie entitlement to summary judgment (see Insurance Law [*2]§ 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The affidavit submitted by defendant in opposition to the motion was sufficient to establish that the denial of claim forms were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; 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]).

Plaintiff was not entitled to summary judgment on the claims making up the first through fifth causes of action and $124.14 of the sixth cause of action, which were denied based upon an independent medical examination, since defendant's papers, which included an affidavit and examination report from the acupuncturist that performed the independent medical examination, were sufficient to demonstrate the existence of a triable issue of fact with respect to defendant's defense of lack of medical necessity (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; A. Khodadadi Radiology, P.C. v NY Cent Mut Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since defendant established that it had fully paid plaintiff the amount to which plaintiff is entitled under the workers' compensation fee schedule, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint as to those claims that were reduced pursuant to the workers' compensation fee schedule (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated, plaintiff's motion for summary judgment is denied, upon searching the record, partial summary judgment is granted to defendant dismissing the seventh cause of action and so much of the sixth cause of action as sought to recover the unpaid balance of $105.21 on claims that were reduced pursuant to the workers' compensation fee schedule, and the matter is remitted to the Civil Court for all further proceedings on the first through fifth causes of action and so much of the sixth cause of action as sought to recover upon a claim in the sum of $124.14.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010