Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. (2014 NY Slip Op 51407(U))

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 9, 2013, as denied, in part, its motion for summary judgment dismissing the complaint, and, upon searching the record, granted summary judgment in favor of plaintiff in the principal sum of $2,175.

Per Curiam.

Order (James E. d’Auguste, J.), entered August 9, 2013, insofar as appealed from, affirmed, with $10 costs.

We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.

In the absence of a cross appeal by plaintiff, the propriety of the dismissal of plaintiff’s remaining claim is not properly before us.