March 21, 2014

Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))

Headnote

The court considered the fact that Sunrise Acupuncture PC, seeking recovery of assigned first-party no-fault benefits, appealed from an order of the Civil Court of the City of New York, which granted defendant's motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant's motion for summary judgment should be granted, and the court held that the action is not ripe for summary dismissal. The court found that triable issues remain with respect to the claims denied outright by defendant on the stated basis that the CPT codes billed under were "outside the scope of the provider's specialty," and that the defendant's failure to meet its evidentiary burden mandates the denial of its motion, regardless of the sufficiency of the opposing papers. Therefore, the court reversed the order, denied defendant's motion for summary judgment, and reinstated the complaint.

Reported in New York Official Reports at Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U))

Sunrise Acupuncture PC v Tri-State Consumer Ins. Co. (2014 NY Slip Op 50435(U)) [*1]

Sunrise Acupuncture PC v Tri-State Consumer Ins. Co.

2014 NY Slip Op 50435(U) [42 Misc 3d 151(A)]

Decided on March 21, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
570024/14.

Sunrise Acupuncture PC, a/a/o Sherman Walker, Plaintiff-Appellant, – –
against
Tri-State Consumer Insurance Company Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered August 1, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered August 1, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers’ compensation fee schedule (see Akita Medical Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] {App Term, 1st Dept 2013]), triable issues remain with respect to the claims denied outright by defendant on the stated basis that the CPT codes billed under were “outside the scope of the provider’s specialty.” Even assuming, without deciding, that defendant’s affiant, a claims examiner, may fairly be considered an expert qualified to render an opinion on such matters (but cf. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21-22 [2009]), the conclusory assertions set forth in her moving affidavit were insufficient to eliminate all triable issues of fact concerning the provider’s “specialty.” Defendant’s failure to meet that evidentiary burden mandates the denial of its motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 21, 2014