Apple Tree Acupuncture, P.C. v Interboro Ins. Co. (2011 NY Slip Op 52364(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 23, 2010. The order denied defendant’s motion for partial summary judgment with respect to plaintiff’s claims for acupuncture services rendered from February 1, 2007 through June 27, 2007 and from August 6, 2007 through September 4, 2007.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for partial summary judgment with respect to plaintiff’s claims for acupuncture services rendered to its assignor from February 1, 2007 through June 27, 2007 and from August 6, 2007 through September 4, 2007.

We find that defendant’s motion established that the claim denial forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant, however, was not entitled to partial summary judgment with respect to plaintiff’s first [*2]two claims (for dates of service from February 1, 2007 through February 28, 2007 and from March 1, 2007 through March 29, 2007). The explanation entered on defendant’s denial of claim forms for these two claims reflected that plaintiff was not entitled to recover for concurrent care, pursuant to General Ground Rule 6 of the workers’ compensation fee schedule. In support of its motion for partial summary judgment, however, defendant asserted that these claims should be dismissed, pursuant to the workers’ compensation fee schedule, because the amounts sought by plaintiff for the acupuncture services it had rendered to its assignor exceeded the amounts permitted by the fee schedule. Because defendant’s motion was predicated on an excessive fee schedule defense, and since the explanation for the denial on defendant’s denial of claim forms did not apprise plaintiff of the ground asserted in its motion with “a high degree of specificity” (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871, 872 [2011], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]), defendant was not entitled to partial summary judgment on this ground with respect to these claims.

Defendant denied the remaining claims (for dates of service from April 2, 2007 through April 30, 2007; from May 1, 2007 through May 31, 2007; from June 4, 2007 through June 27, 2007; from August 6, 2007 through August 27, 2007; and from September 4, 2007 through September 27, 2007) based upon an independent medical examination (IME) by defendant’s acupuncturist, who had found that acupuncture treatment was no longer necessary. The IME report and accompanying affidavit of defendant’s acupuncturist established a lack of medical necessity for the services at issue with respect to these claims. However, since the affidavit submitted by plaintiff’s acupuncturist in opposition to defendant’s motion was sufficient to raise a triable issue of fact regarding the medical necessity of the treatment rendered (see Alur Med. Supply, Inc. v GEICO Ins. Co., 31 Misc 3d 126[A], 2011 NY Slip Op 50438[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), defendant was not entitled to summary judgment as to these remaining claims.

Accordingly, the order is affirmed, albeit for reasons other than those stated by the Civil Court.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011