November 13, 2020

Master Cheng Acupuncture, P.C. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51371(U))

https://www.beynensonlaw.com/case-law/master-cheng-acupuncture-p-c-v-global-liberty-ins-of-n-y-2020-ny-slip-op51371u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51371(U)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Medical necessity
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Master Cheng Acupuncture, P.C. v Global Liberty Ins. of N.Y., 2020 NY Slip Op 51371(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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.

The insurer proved proper fee-schedule payments, but a factual dispute remained over medical necessity of a separate service claim. The insurer sought summary judgment dismissing the provider's action for assigned first-party no-fault benefits. Its proof established that claims denied in part for exceeding the workers' compensation fee schedule had been properly paid, and the provider raised no triable issue concerning those payments. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the unpaid portions of those claims. It otherwise affirmed, leaving the separate claim subject to the medical-necessity dispute pending.

Reported in New York Official Reports at Master Cheng Acupuncture, P.C. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51371(U))

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

Master Cheng Acupuncture, P.C., as Assignee of Manuel Santiago, Respondent,
against
Global Liberty Ins. of NY, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 15, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims for services rendered April 17, 2014 through May 12, 2014 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied its motion for summary judgment dismissing the complaint.

With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims for services rendered April 17, 2014 through May 12, 2014, which claims defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant’s proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact with respect to this branch of defendant’s motion.

Upon a review of the record, we agree with the Civil Court’s determination that there is a triable issue of fact regarding the medical necessity of the services rendered on May 23, 2014 (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims for services rendered April 17, 2014 through May 12, 2014 is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

Legal questions (2)

Questions 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.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Agreed that a triable issue of fact existed regarding the medical necessity of the May 23, 2014 services, so the insurer's summary judgment motion was properly denied as to that claim.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule

Held the insurer's proof established that it had properly paid the April 17 through May 12, 2014 claims under the workers' compensation fee schedule, and the provider raised no triable issue on the unpaid portion.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category.

Cited by

Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50603(U))The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule applicable to chiropractors.

Similar decisions

Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors.
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.
New Age Acupuncture, P.C. v Global Liberty Ins. Co. (2020 NY Slip Op 51225(U))The insurer's calendar-call default was opened and the complaint dismissed because a declaratory judgment barred the provider's claims.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51455(U))The insurer failed to establish timely denials preserving its fee-schedule defense to three claims.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.