Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))

Reported in New York Official Reports at Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80.

ORDERED that the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,373.20 for services rendered from March 2018 to April 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80, the allowable amount permitted under the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and defendant issued timely denials” and that [*2]triable issues of fact remained as to MVAIC’s exhaustion of coverage and fee schedule defenses.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the complaint on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

However, the Civil Court erred in denying the branch of MVAIC’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80, the amount permitted by the workers’ compensation fee schedule. This court has repeatedly held that the workers’ compensation fee schedule for acupuncture services performed by chiropractors before October 1, 2020 is the appropriate fee schedule for insurers to use to determine the amount which a licensed acupuncturist is entitled to receive for acupuncture services (see e.g. Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 141[A], 2022 NY Slip Op 50603[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 69 Misc 3d 140[A], 2020 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Jing Luo Acupuncture, P.C. v NY City Tr. Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 137[A], 2017 NY Slip Op 51832[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; New Wave Oriental Acupuncture, P.C. v Government Empls. Ins. Co., 25 Misc 3d 133[A], 2009 NY Slip Op 52211[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, MVAIC conclusively established its defense that, for claims bearing the code 97139, the fees charged for services rendered from March 2018 to April 2018 exceeded the amounts set forth in the workers’ compensation fee schedule for acupuncture services performed by chiropractors for a total of $792.40.

Accordingly, the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80.

QUIÑONES, J.P., MUNDY and OTTLEY, JJ., concur.