Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51042(U))

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 9, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

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 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]). Nevertheless, plaintiff correctly argues that the record establishes that defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover upon plaintiff’s claim seeking $54.73 for services rendered on February 5, 2014 and billed under CPT code 99203 for the evaluation and management of a new patient. Likewise, defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover an additional $.63 for services rendered on February 27, 2014 because, as set forth in the affidavit defendant submitted [*2]from its certified professional coder, plaintiff was entitled to $16.70 for that date of service but defendant only paid $16.07.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are denied.

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