EMA Acupuncture, P.C. v Geico Ins. Co.

[*1] EMA Acupuncture, P.C. v Geico Ins. Co. 2015 NY Slip Op 51400(U) Decided on September 16, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2158 K C

EMA Acupuncture, P.C. as Assignee of Gregory LaRoche, Appellant,

against

GEICO Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 2, 2012. The order, insofar as appealed from, granted the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service May 21, 2008 through July 31, 2008.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branch of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service May 21, 2008 through July 31, 2008.

On appeal, plaintiff's sole arguments are that defendant failed to make a prima facie showing of lack of medical necessity, and, in any event, that the affidavit of the acupuncturist which plaintiff submitted was sufficient to raise a triable issue of fact. Both arguments lack merit.

The affirmed independent medical examination (IME) report from the doctor who had performed an IME, as well as the IME reports and accompanying affidavits executed by the chiropractor and acupuncturist who had also performed IMEs, set forth a factual basis and a medical rationale for the IME providers' determinations that there was no medical necessity for the acupuncture services at issue. In opposition, plaintiff submitted an affidavit by an acupuncturist which, as the Civil Court found, failed to meaningfully refer to or rebut the conclusions of the IME doctors (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant's cross motion was properly granted (see 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: September 16, 2015