December 19, 2017

Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))

https://www.beynensonlaw.com/case-law/acupuncture-now-p-c-v-geico-ins-co-2017-ny-slip-op-51809u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51809(U) · 58 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

Acupuncture Now, P.C. v GEICO Ins. Co., 58 Misc 3d 135(A), 2017 NY Slip Op 51809(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider's motion remained denied; dismissal of remaining claims was denied, but timely denials were established under CPLR 3212 (g).

Reported in New York Official Reports at Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))

[*1]

Acupuncture Now, P.C. v GEICO Ins. Co.

2017 NY Slip Op 51809(U) [58 Misc 3d 135(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 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
2015-624 Q C

Acupuncture Now, P.C., as Assignee of Franco, Nereyda, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 4, 2015. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based on the workers’ compensation fee schedule, and, upon denying the branches of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely denials of the claims underlying that portion of the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based on the workers’ compensation fee schedule, and, upon denying the branches of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely denials of the claims underlying that portion of the complaint.

Contrary to plaintiff’s argument, defendant’s proof established the proper mailing of the [*2]denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s further argument regarding defendant’s application of the workers’ compensation fee schedule also lacks merit (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

Legal questions (2)

Questions 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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Rejected the provider's argument and held the insurer's proof established proper mailing of the denials, supporting both dismissal of fee-schedule claims and the finding that remaining claims were timely denied.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

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

Rejected the provider's challenge to the insurer's application of the workers' compensation fee schedule, affirming dismissal of the claims denied on that ground.

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

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.

Similar decisions

GBI Acupuncture, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51237(U))The insurer's summary judgment dismissal of fee-schedule claims was affirmed after the provider's mailing and fee-schedule challenges were rejected.
Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors.
Health Needles Acupuncture, P.C. v GEICO Ins. Co. (2014 NY Slip Op 51864(U))The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule for chiropractors.
GL Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51698(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51252(U))An insurer may use the chiropractors' acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's services.