SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered June 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d &
11th Jud Dists]). In opposition to the motion, defendant submitted peer reviews asserting a factual basis and medical rationale sufficient to raise a triable issue as to the medical equipment’s medical necessity (Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., and Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o Lacos Moscoso Martinez,

Appellant,

-against-
HEREFORD INSURANCE COMPANY,

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: August 11, 2005

Civil Court of the City of New York, Kings County

66089/2001

Arlene Bluth, J.

This is an action to recover first-party no-fault benefits, interest, and attorney’s fees pursuant to New York’s Insurance Law and no-fault regulations. Plaintiff Citywide Social Work & Psychological Services, P.L.L.C. (“plaintiff”) billed defendant Allstate Insurance Company (“defendant”) a total of $1,061.63 for psychiatric/psychological services rendered to plaintiff’s assignor, Gloria Zuhne (“assignor” or “patient”). The bill contained separate charges for (1) psychiatric evaluation of records and other accumulated data for diagnostic purposes, (2) psychiatric diagnostic interview examination, (3) psychological testing, including psychodiagnostic assessment with interpretation and report, and (4) explanation and interpretation of results to primary physician. All of the services were performed on June 8, 2001 with the exception of the explanation and interpretation of results to primary physician which was performed on June 15, 2001. Defendant denied all portions of plaintiff’s claim on the ground that the services rendered were medically unnecessary.

At the outset of the August 8, 2005 trial, the parties stipulated and agreed that plaintiff had submitted a proper proof of claim and that defendant had made a timely denial. The parties further stipulated and agreed to the following documents in evidence: Plaintiff’s Exhibit 1: plaintiff’s claim form with cover letter, Dr. Fischer’s letter of medical necessity, psychological evaluation, Narrative Report, Assignor’s self-referral consent and authorization form, assignment of benefits form, addendum to NF-3, attendance form, and patient’s consent for plan of care; plaintiff’s Exhibit 2: defendant’s explanation of bill payment, NF-10, and summons and complaint; defendant’s Exhibit A: peer review by Laurence Abelove, Ph.D.

The only issue for trial, then, was the medical necessity of the billed-for psychiatric and psychological services, an issue on which defendant bore the burden of proof (A.B. Med. Servs., P.L.L.C. v GEICO Ins. Co., 2 Misc 3d 26, 27, 773 NYS2d 773 [App Term, 2nd Dept 2003]; Nir v Allstate Ins. Co., 7 Misc 3d 544, 546, 796 NYS2d 857 [Civ Ct, Kings County 2005]; Behavioral Diagnostics v Allstate Ins. Co., 3 Misc 3d 246, 248, 776 NYS2d 178 [Civ Ct, Kings County 2004]).

Defendant called as its witness Dr. Laurence Abelove, a licensed psychologist since 1987 who qualified as an expert without objection. Dr. Abelove, who performed the peer review upon [*2]which defendant based its denial of claim, testified that the billed-for work was not medically necessary and that even if it were, there was a lack of documentation to substantiate that it was done properly. Specifically, Dr. Abelove testified that the documents did not support a determination that there was a true review of records (billing code 90885), as the only document provided to plaintiff by another medical professional was the referral; the other record was a self-assessment form that plaintiff had given the patient that day, the review of which does not qualify for the billing code used. Dr. Abelove testified that plaintiff’s evaluation of records for medical diagnostic purposes was medically unnecessary because such a review is performed as part of the initial psychiatric diagnostic interview examination and, therefore, should not be charged as a separate, stand-alone service on plaintiff’s bill for services rendered.

Dr. Abelove also testified that plaintiff did not perform a thorough intake interview and thus should not have billed for one (billing code 90801). To support his conclusion, Dr. Abelove pointed to, among other things, the lack of information regarding the accident itself in plaintiff’s reports and the lack of a detailed history with respect to the assignor’s following histories: marital, occupational, prior psychological and medical treatments, place of birth, ages of children, etc. As well, the records lacked a thorough pre- and post-accident comparison of the assignor’s symptoms. Accordingly, Dr. Abelove concluded that the comprehensive interview required by the billing code was not done.

With respect to the psychological testing (billing code 96100), Dr. Abelove testified that the diagnosis of the assignor’s psychological condition could have been made following a thorough interview examination and thus the battery of psychological tests was unnecessary. Additionally, the tests were not geared (or “normed”) for the assignor, who had suffered a motor vehicle accident less than a month earlier. Accordingly, Dr. Abelove concluded that the psychological tests, which consisted of the Beck depression inventory, the Beck anxiety inventory, the Beck hopelessness scale, a neuro-psychological symptom checklist (which does not qualify as a test in Dr. Abelove’s opinion), a pain-patient profile, and a mental status profile, were not medically necessary for the purposes of diagnosing the assignor.

Finally, with respect to the final billing code (90887), Dr. Abelove stated that there was no documentary evidence that the reports were discussed with any members of the assignor’s family and there was no indication that the assignor was incapable of understanding the results herself. To the extent that the charge was for reporting to the assignor’s primary care physician, Dr. Abelove testified that sending a copy of such report was a courtesy and not chargeable. Besides, having concluded that psychological testing was not medically necessary, Dr. Abelove also concluded that plaintiff’s explanation and interpretation of those tests to the assignor’s primary physician were also medically unnecessary.

Dr. Bruce Baumgarten, a psychologist licensed in this state who also qualified as an expert without objection, testified on behalf of plaintiff that all the billed-for psychological services were medically necessary. With respect to a review of records (billing code 90885), Dr. Baumgarten indicated that the referral from another doctor was reviewed (see medical necessity letter, bolded language at the bottom of page one). Regarding the intake interview (billing code 90801), Dr. Baumgarten admitted that the details of the accident were particularly skimpy in the reports, but that the other bases for defendant’s objections were trivial; Dr. Baumgarten speculated that the details were probably covered in the interview but possibly not all the [*3]information gathered by the interviewer made it into the report.

Regarding the psychological testing (billing code 96100), Dr. Baumgarten testified that two independent sources of data are needed in order to accurately diagnose a patient’s psychological condition, and that in the absence of two sources, the validity of an initial diagnosis usually cannot be confirmed. Dr. Baumgarten also opined that the psychological testing at issue is useful not only in confirming the validity of a diagnosis, but in planning the assignor’s course of treatment because the testing provides the psychologist with a “longitudinal” view of how the patient has been feeling over a period of time. Thus, Dr. Baumgarten concluded that psychological tests were medically necessary both to confirm the initial diagnosis made following the assignor’s interview examination and to specify her actual level of illness.

Finally, Dr. Baumgarten also testified that the explanation and interpretation of results to the primary physician was medically necessary (billing code 90887), was chargeable, and was not merely a courtesy.

Analysis

Rather than defining medical necessity, the No-Fault Insurance Law merely provides that claimants are entitled to recover for “basic economic loss,” which includes, inter alia, “[a]ll necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation.” (Insurance Law § 5102 [a] [1]; see also Behavioral Diagnostics, 3 Misc 3d at 248). The no-fault regulations likewise provide little assistance to courts attempting to determine, in the face of conflicting expert testimony, whether certain medical or psychological services are medically necessary (see 11 NYCRR § 65.12 [e] [2]; Behavioral Diagnostics, 3 Misc 3d at 249).

In the absence of a statutory standard, courts have been forced to fashion their own definitions of medical necessity. In the context of psychological testing, case law reveals at least three such judicially crafted definitions. The first, which asks “could a psychologist hold an objective and reasonable belief that the tool used will further the patient’s diagnosis and treatment and whether that tool is warranted given the circumstances” was announced in Medical Expertise, P.C. v Trumbull Ins. Co., 196 Misc 2d 389, 395, 765 NYS2d 171 [Civ Ct, Queens County 2003]. The second standard, found in Citywide Soc. Work & Psychol. Servs., P.L.L.C. v Travelers Indem. Co., 3 Misc 3d 608, 613, 777 NYS2d 241 [Civ Ct, Kings County 2004], focuses the court’s inquiry on the “generally accepted medical/professional practice,” while the third holds psychological tests to be medically necessary if “either (1) they are within the standard of care for good and accepted medical practice for all patients in that circumstance; or (2) the treating physician made a reasoned and reasonable judgment, based on the particular circumstances of the patient, that the tests will assist the physician in formulating an accurate diagnosis and an appropriate treatment plan for the patient” (Behavioral Diagnostics, 3 Misc 3d at 251-52).

In essence, though, the question of the medical necessity of psychological testing turns on the credibility of the testifying doctors. Here, both experts agreed that if plaintiff received a [*4]referral from a treating medical doctor because that doctor thought the patient’s psychic pain from the motor vehicle accident needed the attention of a psychologist, the first thing plaintiff should have done is to read why that doctor thought this patient needed help. Both experts agreed that the plaintiff then should have talked to the patient to find out what had happened in the accident and why the patient was having so much trouble coping. The Court credits Dr. Abelove that the next step was to determine, based on plaintiff’s evaluation of the assignor and arrival at a possible diagnosis, which tests, if any, were appropriate to confirm or rule out that diagnosis. Then, armed with two independent sources of information the evaluation interview and the test results plaintiff should have explained and interpreted the results, including the diagnosis and treatment plan, to the assignor’s primary physician, so the referring physician would be apprised as to whether the assignor’s symptoms were the result of a legitimate psychological condition or merely psychosomatic.

After reviewing the exhibits and hearing the testimony, the Court agrees with defendant’s expert, Dr. Abelove, that a comprehensive intake interview was not done and therefore payment for $194.58, billing code 90801, is denied. In the Court’s view, a comprehensive interview for a patient presenting due to a car accident must significantly delve into the accident and the patient’s problems resulting therefrom. From the evidence presented, there is no indication that plaintiff was even aware, for example, of the severity of the accident, how strong the impact, whether anyone was killed, the injuries sustained and the severity thereof, who was at fault, the damage to the vehicles involved, or the financial pressures and setbacks suffered by the patient because of the accident. For example, the patient could have been on the mend from back surgery, and the minor fender bender caused a re-injury, resulting in her recovery regressing and her becoming frustrated. This would be very different from an accident caused by the patient drinking and slamming into a bus stop full of children, causing several deaths and severe injuries. There is no indication of the extent of the patient’s injuries, nor those of her children, nor those of the other driver or passengers, nor any indication of the patient’s feelings with respect thereto. Because the record does not reflect that plaintiff ever asked about these highly relevant facts, this Court concludes that the comprehensive intake interview was never performed.

Since a comprehensive interview was never performed, the battery of tests performed was not medically necessary. This Court credits the testimony of plaintiff’s expert, Dr. Baumgarten, that there is a need for two independent sources of psychological data to accurately diagnose a patient’s condition. However, not every patient should have every test; for example, if the interview revealed psychological symptoms but no chronic, physical pain, then there would be no need to conduct the pain-patient profile test. Since the medical necessity and appropriateness of each of the various tests can only be determined after a comprehensive interview, and no such interview was done here, plaintiff has failed to rebut defendant’s proof that the tests were not medically necessary. Accordingly, the payment for $696.50 for psychological testing (billing code 96100) is denied.

Two more bills must be addressed. The first is the review of records for purposes of medical diagnosis (billing code 90885) in the amount of $67.24. There is no question that plaintiff reviewed something from the referring physician. In the letter of medical necessity (on the bottom of page one), plaintiff lists several symptoms mentioned by the referring physician. [*5]The basis for defendant’s objection to this bill was that only one document was reviewed. However, defendant offered no testimony as to a minimum number of records which must be reviewed in order to qualify for this billing code, or that the referral did not constitute a medical record. Since the Court finds that the defendant has failed to fulfill its burden that it was not medically necessary to review the records, plaintiff is awarded $67.24 on this bill.

Finally, having found that the comprehensive intake was not done and the tests performed were unnecessary, the Court denies payment for $103.31 for billing code 90887, reporting to primary physician.

Accordingly, judgment should be entered in favor plaintiff in the amount of $67.24, together with statutory interest and attorney’s fees and costs.

This is the Decision and Order of the Court.

Dated: August , 2005

ARLENE P. BLUTH

Judge, Civil Court

—[*1]

In an action to recover unpaid no-fault benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated November 17, 2003, which denied its motion for summary judgment on the first and second causes of action and granted the defendant’s cross motion for summary judgment dismissing those causes of action.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the cross motion which were for summary judgment dismissing the first and second causes of action and denying that branch of the motion which was for summary judgment on the first cause of action and substituting therefor provisions denying those branches of the cross motion, reinstating the first and second causes of action, and granting that branch of the motion which was for summary judgment on the first cause of action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in concluding that the plaintiff lacked standing to bring the action absent proof of a valid assignment from each claimant. The hospital facility forms submitted on behalf of the respective patients indicated that the signature of each patient/assignor was “on file.” There was no allegation or evidence that the defendant timely objected to the completeness of the forms or sought verification of the assignments as required by 11 NYCRR 65.15 (d). Accordingly, the defendant waived any defenses based thereon (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]). [*2]

With regard to the first cause of action, after the plaintiff made out a prima facie case for summary judgment, the defendant failed to raise a triable issue of fact as to whether the insured’s 2002 medical expenses “were for injuries for which expenses for treatment had not been submitted to it within one year of [his] accident” (Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873 [1996]; see 11 NYCRR 65.15 [o] [1] [iii]). In any event, the defendant’s failure to assert this statutory-exclusion defense within 30 days of the receipt of the no-fault claim constituted a waiver (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]). Accordingly the plaintiff was entitled to summary judgment on the first cause of action.

With regard to the second cause of action, the defendant asserted that no policy of insurance was in effect covering the injured party on the date of the accident. While the defendant offered a denial of claim form dated December 30, 2002, to that effect, there was no affidavit of service to establish that the form was, in fact, mailed to the plaintiff within 30 days of receipt of the claim (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra). Regardless, “[s]trict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488, 489 [2001]). Here, a triable issue of fact exists as to whether coverage existed at the time of the accident at issue. Accordingly, neither party was entitled to summary judgment on this cause of action. H. Miller, J.P., Ritter, Goldstein and Skelos, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Spodek, J.), entered June 10, 2004, which denied their motion for partial summary judgment.

Order unanimously reversed without costs, plaintiffs’ motion for partial summary judgment granted awarding plaintiff A.B. Medical Services PLLC the sum of $5,405.98, plaintiff D.A.V. Chiropractic P.C. the sum of $88.44, and plaintiff Lvov Acupuncture P.C. the sum of $840.56, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims.

Plaintiff health care providers commenced this action to recover the sum of $6,523.32 in first-party no-fault benefits for medical services rendered to their assignor, and thereafter moved for partial summary judgment in the sum of $6,326.52, which was comprised of $5,397.52 in claims for A.B. Medical Services PLLC, $88.44 in claims for D.A.V. Chiropractic P.C., and $840.56 in claims for Lvov Acupuncture P.C. (We note, incidentally, that included in the amount sought in the instant motion by plaintiff A.B. Medical Services PLLC is a claim for $523.94 which, as conceded by defendant, should have been in the amount of $532.40, and we therefore modify the amount sought for this claim.) Upon a review of the record, we find that plaintiffs established a prima facie entitlement to partial summary judgment in the aggregate amount of $6,334.98, by showing that they submitted claims setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; [*2]Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, however, did not meet its burden, since it failed to establish by competent evidence that its denial of claim forms were timely mailed within the requisite 30-day period to pay or deny the claims (11 NYCRR 65-3.8 [a] [1]). Although defendant in its opposition papers submitted an affidavit of its no-fault field adjuster who was familiar with the file, the affidavit did not allege that the denial of claim forms were actually mailed, nor did it describe the standard office practice or procedures used by defendant to ensure that such denials were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on the aggregate sum of $6,334.98, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder. We note that plaintiffs did not seek summary judgment for the balance due on the $71.06 claim for A.B. Medical Services PLLC and the balance due on the $425 claim for Lvov Acupuncture P.C., and the matter is therefore remanded for all further proceedings on those remaining claims.
Decision Date: July 28, 2005

Civil Court of the City of New York, Kings County

89889/04

Appearing for plaintiff: Gary Tsirelman, Brooklyn, NY; for defendant: Law Offices of Teresa M. Spina, Woodbury, NY.

Arlene P. Bluth, J.

Upon the foregoing cited papers and after argument, plaintiff moves for summary judgment pursuant to CPLR § 3212. For the following reasons, the motion is denied.

In this action, plaintiff Great Wall Acupuncture, P.C. seeks to recover first-party No-Fault benefits in the amount of $789.10 plus statutory, interest, costs, and attorneys’ fees, for [*2]acupuncture treatment it allegedly provided to its assignor, June Jackson, in March through May 2004. Plaintiff argues that defendant improperly reduced its No-Fault benefits: Plaintiff billed defendant $90.00 for each of 13 acupuncture sessions performed by a licensed acupuncturist, for a total of $900.00, and defendant reimbursed only $29.30 per session, for a total of $380.90.

The Workers’ Compensation fee schedules, adopted by the Superintendent of Insurance and used by No-Fault insurers in reviewing claims, lacks a schedule for acupuncture treatment performed by a licensed acupuncturist, such as the treatment rendered here. There are, however, fee schedules for acupuncture treatment provided by physicians and chiropractors, with physicians being reimbursed at a higher rate than chiropractors. The No-Fault regulations provide that “if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent.” 11 NYCRR § 68.5(b). Thus, a provider for whose profession there is no applicable fee schedule may charge whatever the prevailing fee is for that profession in that locale, and the insurer may then review the claim to determine if the fee billed is consistent with that for similar procedures provided for in existing fee schedules.

In his affirmation, plaintiff’s counsel argues that the amount billed per session is well within the range of the prevailing fee charged by local licensed acupuncturists. Plaintiff’s counsel also argues that acupuncture performed by a licensed acupuncturist is not at all a “similar procedure” to acupuncture performed by a physician. The difference, according to plaintiff’s counsel, lies in the practitioners’ respective levels of acupuncture training (plaintiff’s counsel asserts that licensed acupuncturists have much more training than physicians), and in the superiority of the science and philosophy of the Chinese medicine practiced by licensed acupuncturists to the Western medicine practiced by physicians performing acupuncture. Plaintiff’s counsel, however, has not qualified as an expert in acupuncture, from the Eastern or Western schools, nor has he established that he is an expert on the billing rates of local licensed acupuncturists; in fact, he has no personal knowledge whatsoever about what he so boldly represents to the Court as fact.^[FN1]

Moreover, the attorney’s entire affirmation speaks only to physicians performing [*3]acupuncture yet defendant here reimbursed plaintiff at $29.30 per session, the fee set for a chiropractor performing acupuncture in plaintiff’s geographic area, not a physician.^[FN2] Plaintiff does not address whether chiropractors practice Western or Eastern medicine, or some combination thereof. More important, however, plaintiff provides no evidence in its own affidavit or in any other form to support the contention that a licensed acupuncturist should receive a higher fee than a chiropractor performing acupuncture. It is axiomatic that the affirmation of a party’s attorney “who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment . . . .” Peters v. City of New York, 5 Misc 3d 1020(A) [Sup Ct, Kings Cty 2004]; see also Zuckerman v. City of New York, 49 NY2d 557 [1980]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A) [App Term, 2nd and 11th Jud Dists 2004].

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]. Plaintiff has not met that burden. “Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it ‘should only be employed when there is no doubt as to the absence of triable issues.'” Kolivas v. Kirchoff, 787 NY2d 392, 392-93 [2nd

Dept 2005] (citation omitted). Whether acupuncture provided by a licensed acupuncturist is similar to that provided by a chiropractor is clearly a question of fact, and that fact issue has not been resolved by plaintiff’s motion.

Accordingly, plaintiff’s motion for summary judgment is denied. At oral argument, plaintiff conceded the timeliness of defendant’s denial, and therefore the only issue for trial is whether defendant properly reduced the amount billed.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

Footnotes

Footnote 1: The attorney’s affirmation gives the erroneous impression that his client’s affidavit contains enough information to support the contents of the affirmation. In paragraph 25 of the attorney’s affirmation, he states: “Plaintiff’s undisputed contention is that the prevailing fee for acupuncture services in New York City ranges between $85 and $100 per session….” This is absolutely false, as plaintiff submits no affidavit of the kind. The only mention of the fee in plaintiff’s affidavit is what was billed and what is allegedly due. Plaintiff’s affidavit does not even state that services were performed by a licensed acupuncturist; the Court determined this by viewing the unsigned NF-3 annexed to the moving papers.

Footnote 2: Under the fee schedule for chiropractors, acupuncture is reimbursed at a rate of between $22.51 and $29.30, depending on the provider’s geographic location. Under the physical medicine fee schedule, physicians performing acupuncture receive between $32.90 and $42.84, depending on geographic location.

—[*1]

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 12, 2004, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In this action seeking recovery of no-fault benefits, Supreme Court erred in granting defendant insurer’s motion for summary judgment dismissing the complaint. The record does not establish, as a matter of law, that, under the circumstances, plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations. While defendant remains free to raise as a defense at trial its claim that plaintiff is seeking a double recovery, the existing record does not establish such a defense as a matter of law. Finally, plaintiff is not precluded from asserting the claims at bar, based on injuries he allegedly incurred in a 1999 accident, by an assignment of benefits he executed in 1993, more than six years prior to that accident. Concur—Mazzarelli, J.P., Andrias, Friedman, Gonzalez and Catterson, JJ.