March 26, 2004

Triboro Chiropractic & Acupuncture v Elec. Ins. Co. (2004 NY Slip Op 50215(U))

Headnote

The court considered an appeal from the denial of a motion for partial summary judgment in a case to recover first-party no-fault benefits. The main issue decided was whether the plaintiff had established a prima facie case for summary judgment by proving the fact and amount of the loss sustained. The court held that the denial of the claim on the ground that certain treatments were medically unnecessary was justified based on peer reviews and the results of an independent medical examination. The matter was remanded to the court for further proceedings on the claims.

Reported in New York Official Reports at Triboro Chiropractic & Acupuncture v Elec. Ins. Co. (2004 NY Slip Op 50215(U))

Triboro Chiropractic & Acupuncture v Elec. Ins. Co. (2004 NY Slip Op 50215(U)) [*1]

Triboro Chiropractic & Acupuncture v Elec. Ins. Co.

2004 NY Slip Op 50215(U)

Decided on March 26, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-193 Q C

TRIBORO CHIROPRACTIC AND ACUPUNCTURE P.L.L.C a/a/o JERRY TACOPINO, Appellant,
against
ELECTRIC INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (P. Kelly, J.), entered October 23, 2002, denying its motion for partial summary judgment in the sum of $6,418.48.

Order unanimously affirmed without costs.

In this action to recover $11,251.62 in assigned first-party no-fault benefits, the court below denied plaintiff’s motion for partial summary judgment on $6,418.48 of its
claims. Plaintiff appeals that order to the extent that it denied $3,897.20 in benefits for
treatment rendered prior to December 28, 2001, conceding, in its brief, that a file-based
peer review and the results of an independent medical examination, conducted December 27, 2001 and December 28, 2001 respectively, created triable issues of fact whether prior diagnostic tests and all subsequent tests and treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). In our view, the court properly denied summary judgment.

A no-fault benefits claimant establishes its prima facie case for summary judgment by “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]), via the statutory [*2]claim forms (11 NYCRR 65.15 [b] [4]) or their functional equivalent (11 NYCRR 65.15 [d] [5); Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Defendant timely denied the claim (11 NYCRR 65.15 [g] [3]) on the ground that certain of plaintiff’s treatments were medically unnecessary (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 202 [1997]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]) based on peer reviews which, in our view, set forth a sufficient factual foundation and medical rationale for the claims’ rejection (Amaze Med.
Supply Inc. v Eagle Ins. Co., supra). With respect to the acupuncture claims, assignor’s
apparent denial that he received such treatment, as recorded in the medical examination report, created a triable issue whether the claim based thereon was appropriate.
Accordingly, the matter is remanded to the court below for all further proceedings on the claims.

Decision Date: March 26, 2004