October 23, 2009

New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. (2009 NY Slip Op 52211(U))

Headnote

The relevant facts involved in the case were a dispute over first-party no-fault benefits being sought by a medical provider. The main issues considered by the court were whether the plaintiff had established its entitlement to summary judgment in seeking these benefits, and whether the defendant had raised a triable issue of fact to dispute the plaintiff's claim. The holding of the case was that the plaintiff had not sufficiently established its entitlement to summary judgment, and that the defendant had indeed raised a triable issue of fact, therefore the plaintiff's motion for summary judgment was denied. The court declined the defendant's request to search the record and grant summary judgment in their favor.

Reported in New York Official Reports at New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. (2009 NY Slip Op 52211(U))

New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. (2009 NY Slip Op 52211(U)) [*1]

New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co.

2009 NY Slip Op 52211(U) [25 Misc 3d 133(A)]

Decided on October 23, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1638 K C.

New Wave Oriental Acupuncture, P.C. a/a/o GERALD IKEZI, Respondent,
against
Government Employees Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 30, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed without costs and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff established its prima facie entitlement to summary judgment (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; 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]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for [*2]defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and plaintiff’s motion for summary judgment should have been denied.

We decline defendant’s request that we search the record and grant defendant summary judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009