March 8, 2010

Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))

Headnote

The court considered whether the provider's claims for first-party no-fault benefits for services rendered on October 5, 2006 and from November 12 to 16, 2006 were medically necessary. Defendant submitted an affidavit and an independent medical examination (IME) report showing a lack of medical necessity for the services. The Civil Court denied defendant's motion for summary judgment, finding that the sole issue for trial was the medical necessity of the denied bills based on the IME. However, the Appellate Term reversed this decision, holding that defendant's motion for summary judgment should have been granted because the affirmation of the plaintiff's supervising acupuncturist did not rebut the conclusions set forth in the IME report. Therefore, defendant's motion for summary judgment dismissing the claims at issue should have been granted, and the decision of the Civil Court was reversed.

Reported in New York Official Reports at Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))

Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U)) [*1]

Eastern Star Acupuncture, P.C. v Mercury Ins. Co.

2010 NY Slip Op 50380(U) [26 Misc 3d 142(A)]

Decided on March 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2009-638 K C.

Eastern Star Acupuncture, P.C. a/a/o Alejandro Soriano, Respondent,
against
Mercury Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered February 19, 2009. The order, insofar as appealed from, denied so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006).

ORDERED that the order, insofar as appealed from, is reversed without costs, and so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006) is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion which, insofar as is relevant to this appeal, sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006), finding that, with respect thereto, the “sole issue for trial is medical necessity of the bills that were denied based on a[n] independent medical examination.” The instant appeal by defendant ensued.

In support of its motion for summary judgment, defendant submitted an affidavit executed by the chiropractor/acupuncturist who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s “supervising acupuncturist” did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, so much of defendant’s motion as sought dismissal of the claims at issue should have been granted (id.; see also A. [*2]Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 2010