Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51772(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered November 22, 2010, deemed from a judgment of the same court entered December 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 22, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,071.33.

ORDERED that the judgment is reversed, without costs, the order entered November 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered November 22, 2010 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, the affidavit of defendant’s employee [*2]was sufficient to establish that defendant had timely mailed the denial of claim forms. The affidavit established that the denials had been mailed from defendant’s Woodbury office and described defendant’s standard mailing practice and procedure for that office (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 [App Term, 2d & 11th Jud Dists 2007]).

Defendant denied the claims for services rendered from March 31, 2009 to September 24, 2009 on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Defendant demonstrated that it had fully paid plaintiff for these services in accordance with the workers’ compensation fee
schedule. Accordingly, the branches of defendant’s cross motion for summary judgment seeking to dismiss so much of the complaint as sought to recover for these dates of service should have been granted (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant denied the claims for services rendered on September 25, 2009 based upon an independent medical examination (IME). In support of its cross motion for summary judgment, defendant submitted the sworn report of the licensed acupuncturist who had conducted the IME of plaintiff’s assignor. The report set forth a factual basis and medical rationale for the examiner’s determination that there was no need for further acupuncture treatment. In opposition, plaintiff submitted an affidavit from the treating acupuncturist which, while referring to the IME report, offered only a conclusory rebuttal to the conclusions set forth therein (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]). Accordingly, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on September 25, 2009 should have been granted (see A. 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]).

Accordingly, the judgment is reversed, the order entered November 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 2012