Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co.
Annotate this CaseDecided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-398 K C
Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke, Respondent,
against
GEICO General Insurance Company, Appellant.
The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment [*2]dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.
The proof submitted by defendant in support of its cross motion was sufficient to demonstrate that it had fully paid plaintiff for the services billed under CPT codes 97811, 97813 and 97814 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 Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant's prima facie showing was not rebutted by plaintiff, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment on these claims, the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 should have been granted.
However, defendant failed to establish, as a matter of law, that it had properly paid plaintiff for the services billed under CPT code 97810, as defendant did not explain its apparent recoding of those services (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017
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