September 8, 2017

Acupuncture Now, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51154(U))

Headnote

The court considered the plaintiff's appeal from an order by the Civil Court granting the defendant's motion for summary judgment dismissing the first through fifth causes of action and compelling the plaintiff to appear for a deposition. The main issue decided was whether the defendant's fee reductions, according to the workers' compensation fee schedule for acupuncture services performed by chiropractors, were proper. The court held that it is legal for an insurer to use the workers' compensation fee schedule to determine the amount a licensed acupuncturist is entitled to receive for acupuncture services. Furthermore, since the defendant was defending the remaining cause of action on the grounds that the services rendered lacked medical necessity, the Civil Court properly granted the defendant's motion to compel the plaintiff to appear for a deposition. Thus, the order was affirmed.

Reported in New York Official Reports at Acupuncture Now, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51154(U))

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

Acupuncture Now, P.C., as Assignee of Singh, Deonarine, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 26, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action and to compel plaintiff to appear for a deposition.

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 an order of the Civil Court which granted the branches of defendant’s motion seeking summary judgment dismissing the first through fifth causes of action and to compel plaintiff to appear for a deposition.

Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to [*2]receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Since defendant is defending the remaining cause of action on the ground that the services rendered lacked medical necessity, the Civil Court properly granted the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition (see Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

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

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017