April 29, 2008

R.J. Professional Acupuncturist, P.C. v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52729(U))

https://www.beynensonlaw.com/case-law/r-j-professional-acupuncturist-p-c-v-ny-cent-mut-fire-ins-co-2008-nyslip-op52729u/

Court: Appellate Term, Second Department
Decided: April 29, 2008
Citation: 2008 NY Slip Op 52729(U) · 34 Misc 3d 138(A)
Posture: Article 75 petition
Outcome: Insurer prevailed
Issues: CPLR article 75 (arbitration awards) Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

R.J. Professional Acupuncturist, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 138(A), 2008 NY Slip Op 52729(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008)

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 master arbitrator's affirmance of denied acupuncture claims had a rational basis where fee-reduction law was unsettled. The provider sought to vacate a master arbitration award upholding denial of first-party no-fault benefits. The Appellate Term, Second Department, found the determination rational and neither arbitrary nor capricious. Until Great Wall Acupuncture v GEICO Gen. Ins. Co., no settled appellate law addressed an insurer's reduction of fees charged by a licensed acupuncturist. The court modified the order denying vacatur to add confirmation of the award, as CPLR 7511 (e) required, and otherwise affirmed in the insurer's favor. It also noted that a special proceeding should terminate in a judgment under CPLR 411.

Reported in New York Official Reports at R.J. Professional Acupuncturist, P.C. v NY Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52729(U))

[*1]

R.J. Professional Acupuncturist, P.C. v NY Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 52729(U) [34 Misc 3d 138(A)]

Decided on April 29, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1723 K C.

R.J. Professional Acupuncturist, P.C. a/a/o SURESH KHANI, Appellant,
against
NY Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), dated July 13, 2006. The order denied the petition to vacate a master arbitrator’s award.

Order modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find that the determination of the master arbitrator upholding the arbitrator’s award, which denied petitioner’s claims for first-party no-fault benefits, had a rational basis and was not arbitrary and capricious (see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Indeed, until this court rendered its decision in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007], supra), there was no settled appellate law regarding an insurer’s reduction of the amount of fees charged by a licensed acupuncturist for acupuncture services rendered. Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon [*2]denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

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 proved the billed amount exceeded the applicable fee schedule (rules on the question, but another ground decided the case)

Confirmed under rational-basis review a master arbitrator's award upholding denial of the licensed acupuncturist's claims, reasoning that when the award issued there was no settled appellate law on insurers' fee reductions for licensed acupuncturists.

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, 146 (this one included) are in the same category.

Cited in this decision

Great Wall Acupuncture v GEICO Gen. Ins. Co. (2007 NY Slip Op 27164)The insurer properly reimbursed the licensed acupuncturist at chiropractor rates because similar services and licensing requirements supported them.

Similar decisions

RJ Professional Acupuncturist, P.C. v Allstate Ins. Co. (2007 NY Slip Op 51975(U))An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied.
RJ Professional Acupuncturist P.C. v Geico Ins. Co. (2006 NY Slip Op 52255(U))An arbitration award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied.
RJ Professional Acupuncturist, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50579(U))The provider's petition to vacate a master arbitration award failed because its attorney's purported affirmation lacked a perjury declaration.
R.J. Professional Acupuncturist, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50541(U))A provider establishes its prima facie no-fault claim by submitting complete proof of the fact and amount of loss and showing payment is overdue.
Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2018 NY Slip Op 08641)The master arbitrator's confirmation of an award denying benefits for exhausted policy limits had evidentiary support and a rational basis.