Acupuncture Healthcare Plaza I, P.C. v 21st Century Ins. Co.

[*1] Acupuncture Healthcare Plaza I, P.C. v 21st Century Ins. Co. 2015 NY Slip Op 51716(U) Decided on November 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1191 K C

Acupuncture Healthcare Plaza I, P.C. as Assignee of YAN IZRAILOV, Appellant,

against

21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the fifth and seventh causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Defendant's ground for dismissing the first through fourth and the sixth causes of action, which causes of action sought to recover upon the unpaid portions of the underlying claims which defendant had denied, was that the amounts sought exceeded the amounts permitted by the workers' compensation fee schedule. Its ground for dismissing the fifth and seventh causes of action was that it had timely denied the underlying claims due to plaintiff's assignor's failure to attend duly scheduled independent medical examinations (IMEs). By order entered February 6, 2013, the Civil Court granted the branches of defendant's motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action and denied the branches of defendant's motion seeking summary judgment dismissing the sixth cause of action. The Civil Court also granted the branches of defendant's motion seeking summary judgment dismissing the third and fourth causes of action to the extent of dismissing so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In support of its motion, defendant submitted affidavits by its employees which established that defendant had timely mailed the denial of claim forms at issue on this appeal (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff argues that defendant failed to establish that its fee schedule reductions were proper. We disagree and find that, with respect to the services at issue, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. [*2]v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted the branches of defendant's motion seeking summary judgment dismissing the first and second causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In addition, upon a review of the record, we find that there is a triable issue of fact regarding the propriety of the address to which the IME scheduling letters were sent. As a result, defendant is not entitled to summary judgment dismissing the fifth and seventh causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the fifth and seventh causes of action are denied.

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

Decision Date: November 20, 2015