November 13, 2020

S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 51365(U))

https://www.beynensonlaw.com/case-law/s-o-v-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2020-ny-slip-op51365u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51365(U) · 69 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 69 Misc 3d 142(A), 2020 NY Slip Op 51365(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's later payments did not warrant summary judgment on policy exhaustion after partial denials of the disputed claims. The insurer alleged that payments of other claims after those denials exhausted available coverage. Even if true, that allegation did not justify dismissal under 11 NYCRR 65-3.15 and Alleviation Med. Servs., P.C. v Allstate Ins. Co. The insurer's alternative fee-schedule ground also failed because its moving papers did not establish that the charges exceeded the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the provider's complaint.

Reported in New York Official Reports at S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 51365(U))

[*1]

S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2020 NY Slip Op 51365(U) [69 Misc 3d 142(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2152 K C

S.O.V. Acupuncture, P.C., as Assignee of Joyanne Jordan, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Rivkin Radler, LLP (Henry Mascia, Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 20, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the amount of available coverage had been exhausted.

In support of its motion, defendant alleged that, after it had partially denied the claims that are the subject of this action, it paid other claims and that those subsequent payments had exhausted the available coverage. However, even if true, this allegation does not warrant summary judgment dismissing the complaint on the basis of an exhaustion of available coverage defense (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). To the extent defendant argues, in the alternative, that the branch of its motion seeking summary judgment dismissing the complaint on the ground that [*2]it had fully paid the claims in accordance with the workers’ compensation fee schedule should have been granted, as noted in plaintiff’s opposing papers, defendant’s moving papers failed to demonstrate, as a matter of law, that the fees charged exceeded the amount set forth in the workers’ compensation fee schedule (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]). Consequently, defendant’s motion should have been denied.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held the insurer's moving papers failed to demonstrate as a matter of law that the fees charged exceeded the workers' compensation fee schedule, so its alternative fee schedule ground could not support summary judgment.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2017 NY Slip Op 27097) FollowedAn insurer cannot establish policy exhaustion through payments made after it denied a fully verified claim.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Cited by

A label shows how the later decision treated this one.

Chiropractic Assoc. of Richmond Hill, P.C. v Nationwide Gen. Ins. Co. (2025 NY Slip Op 50506(U)) FollowedThe insurer failed to establish that policy limits were exhausted before it received the provider's completed claims.

Similar decisions

JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
Oriental Health Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51261(U))The insurer's summary judgment dismissal based on charges exceeding the workers' compensation fee schedule was affirmed.
Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50603(U))The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))The insurer failed to establish policy exhaustion because its claims specialist laid an insufficient foundation for the payment log.
LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.