WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 6, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which was sufficient to establish that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta [*2]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT code 97813 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]). Since, with the exception of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, defendant fully paid the amount to which plaintiff was entitled for acupuncture services rendered by plaintiff’s licensed acupuncturist from October 26, 2005 through January 19, 2006, so much of defendant’s cross motion for summary judgment seeking to dismiss the complaint as to these claims is granted.

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, billed under CPT code 99204 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant raised no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not reach the propriety of the Civil Court’s determination with respect thereto. Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment as to this claim, and denied the branch of defendant’s cross motion seeking summary judgment dismissing this claim.

In light of the foregoing, the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011