Shara Acupuncture, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51731(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 (Robin S. Garson, J.), entered June 21, 2011. The order denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint.

ORDERED that the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint, finding that defendant had established that it had paid the subject claims at the highest rate available for acupuncture services as set forth in the chiropractic fee schedule.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the denial of claim forms had been 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 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to plaintiff’s claims for acupuncture services billed under codes 97810 and 97811, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the Civil Court’s order as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover for services billed under those codes. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99203, defendant should not have been awarded summary judgment [*2]dismissing so much of the complaint as sought to recover the $75.11 that had been billed under that code.

As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013