LMS Acupuncture, P.C. v Eveready Ins. Co.

[*1] LMS Acupuncture, P.C. v Eveready Ins. Co. 2014 NY Slip Op 51799(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-847 K C

LMS Acupuncture, P.C. as Assignee of ISABEL CRUZ, Appellant, -

against

Eveready Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim which had been denied based on a lack of medical necessity is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contentions on appeal regarding the claims which had been denied based upon the workers' compensation fee schedule, defendant adequately demonstrated that it had fully paid plaintiff for those services in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), and plaintiff failed to raise a triable issue of fact in response.

With respect to the remaining claim, which had been denied based upon a lack of medical necessity, we find that there is a triable issue of fact as to the medical necessity of the services rendered (see Zuckerman v City of New York, 49 NY2d 557 [1980]), and that therefore defendant was not entitled to summary judgment dismissing this claim.

Accordingly, the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which had been denied based on a lack of medical necessity is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014