January 18, 2018
Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))
https://www.beynensonlaw.com/case-law/lotus-acupuncture-pc-v-hereford-ins-co-2018-ny-slip-op-50057u/
- Decided
- January 18, 2018
- Citation
- 2018 NY Slip Op 50057(U) · 58 Misc 3d 148(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Issues
- Fee schedule
- Legal questions
- Proving a fee schedule defense (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))
| Lotus Acupuncture PC v Hereford Ins. Co. |
| 2018 NY Slip Op 50057(U) [58 Misc 3d 148(A)] |
| Decided on January 18, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2018
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570400/17
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered August 29, 2014, which granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.
Per Curiam.
Order (Jose A. Padilla, Jr., J.) entered August 29, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the governing fee schedule (see Healthy Way Accupucture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). The new arguments raised in defendant’s reply papers, even if properly considered (cf. Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]) failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]), and, in any event, revealed additional matters in dispute.
We have considered the parties’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 18, 2018
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial
Held the insurer's proof insufficient to establish prima facie that the charges exceeded the governing fee schedule, and its reply arguments left triable issues, so its summary judgment motion was denied.
Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 10 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U)) FollowedThe insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial.
- MIA Acupuncture, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 21480) FollowedThe insurer proved lack of medical necessity for certain acupuncture services but failed to establish late submission or excessive fees.
- Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))The provider's cross motion failed because factual issues remained over billing rates applicable to its apparent surgical facility status.
Cited by
- Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))The insurer's contradictory submissions raised factual issues about timely and proper fee-schedule denials.
Similar decisions
- Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))The insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue.
- Urban Well Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50606(U))The insurer established fee schedule reductions for certain acupuncture claims and payment of the remaining claims under a settlement.
- Lotus Acupuncture, P.C. v MVAIC (2013 NY Slip Op 51925(U))MVAIC established a timely fee-schedule denial, and the provider raised no triable issue concerning mailing or the fee calculation.
- Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50096(U))The provider's judgment was reversed because no testimony was taken in its action at the consolidated nonjury trial.
- Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51170(U))The insurer failed to establish that services billed under CPT code 97039 were nonreimbursable as outside the provider's specialty.