October 26, 2016

Easy Care Acupuncture, PC v MVAIC (2016 NY Slip Op 51556(U))

Headnote

MVAIC's submissions left factual issues about whether payments to another provider properly exhausted coverage for billed codes. Although MVAIC properly paid some acupuncture claims under the workers' compensation fee schedule, other claims were denied wholly or partly because maximum payment allegedly had already been made for the billed codes. The record raised questions about partial exhaustion through payments to another provider and compliance with insurance department regulations. Failure to deny within 30 days did not preclude the exhaustion defense under New York & Presbyt. Hosp. v Allstate Ins. Co. The Appellate Term, First Department, reversed, denied MVAIC's summary judgment cross motion, reinstated the complaint, and remanded for determination of the provider's discovery motion, which had been denied as moot.

Reported in New York Official Reports at Easy Care Acupuncture, PC v MVAIC (2016 NY Slip Op 51556(U))

[*1]
Easy Care Acupuncture, PC v MVAIC
2016 NY Slip Op 51556(U) [53 Misc 3d 143(A)]
Decided on October 26, 2016
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570192/16

Easy Care Acupuncture, PC, a/a/o Sara Bohorquez, Plaintiff-Appellant,

against

MVAIC, Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Rub�n Franco, J.), entered May 5, 2015, which denied plaintiff’s motion to compel discovery and granted defendant’s cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Rub�n Franco, J.), May 5, 2015, reversed, with $10 costs, defendant’s cross motion denied, the complaint reinstated and matter remanded to Civil Court for determination of plaintiff’s motion to compel discovery.

This action, seeking recovery of assigned first party no-fault benefits, is not ripe for summary dismissal. While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860 [U] [App Term 1st Dept 2013]), triable issues remain with respect to the claims denied in whole or part by defendant on the stated basis that the maximum payment had already been made for the billed codes (see TC Acupuncture, P.C., v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435 [U] [App Term 1st Dept 2014]). Defendant’s submission reveals the existence of triable issues of fact as to whether defendant partially exhausted the coverage by payments to another provider, and whether those payments were proper under the insurance department regulations. Defendant’s failure to deny the claim within 30 days does not preclude a defense that the coverage limits have been exhausted (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]).

We remand the matter for further proceedings, including disposition of plaintiff’s motion to compel discovery, denied as moot below.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur
Decision Date: October 26, 2016

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