January 12, 2010
Amercure Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 50068(U))
https://www.beynensonlaw.com/case-law/amercure-acupuncture-p-c-v-geico-ins-co-2010-ny-slip-op50068u/
- Decided
- January 12, 2010
- Citation
- 2010 NY Slip Op 50068(U) · 26 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Proof of mailing · Proving a fee schedule defense · Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at Amercure Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 50068(U))
| Amercure Acupuncture, P.C. v GEICO Ins. Co. |
| 2010 NY Slip Op 50068(U) [26 Misc 3d 132(A)] |
| Decided on January 12, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-2040 Q C.
against
GEICO Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 7, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 7, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $656.91.
ORDERED that the judgment is reversed without costs, the order entered October 7, 2008 is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, summary judgment is granted to defendant dismissing the complaint.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. Defendant opposed the motion on the ground
that it had properly reimbursed plaintiff for licensed acupuncture services at the rate
consistent with the amount paid for acupuncture services provided by licensed chiropractors. The
Civil Court granted plaintiff’s motion, holding that defendant had failed to demonstrate that it
had issued timely denials of the claims. This appeal by defendant ensued. A judgment was
subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
Defendant established through the affidavit of its claims division employee that it had timely mailed the denial of claim forms to plaintiff, by setting forth the office practices or procedures used to ensure that such items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]).
For the reasons stated in Great Wall Acupuncture, P.C. v GEICO Ins. Co. (___ Misc 3d ___, 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010
Legal questions (3)
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.
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
Held the claims employee's affidavit, describing office practices ensuring items are properly addressed and mailed, established timely mailing of the denials, reversing the lower court's untimely-denial finding.
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.
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
Held the insurer properly paid the licensed acupuncturist at the chiropractor acupuncture rate and, as full payment at that rate was undisputed, searched the record and dismissed the complaint.
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Rejected the insurer's sole challenge, holding the billing manager's affidavit sufficient to make the claim documents admissible under CPLR 4518, but the result rested on the insurer's timely denial and full fee schedule payment.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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.
- AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2007 NY Slip Op 27371) FollowedAn insurer may use the workers' compensation fee schedule for chiropractors to reimburse acupuncture performed by a licensed acupuncturist.
Cited by
A label shows how the later decision treated this one.
- Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U)) FollowedThe insurer proved timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims.
- Irina Kazanskaya, Ac v GEICO Ins. Co. (2010 NY Slip Op 51735(U))The insurer proved timely denial and full payment under the chiropractor fee schedule for the acupuncturist's billed services.
Similar decisions
- Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U))The insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance.
- Gentle Care Acupuncture, P.C. v GEICO (2011 NY Slip Op 51121(U))An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse a licensed acupuncturist.
- MIA Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51731(U))The insurer proved full payment of fee schedule claims and raised a medical necessity issue on the remaining acupuncture claims.
- 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.
- Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.