Decided on August 18, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on August 18, 2016

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 (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and cross motion but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to defendant’s defense of lack of medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion for summary judgment.

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim by plaintiff AL Acupuncture, P.C. for services rendered August 25, 2008 through September 11, 2008, defendant established that the denial of claim form at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid AL Acupuncture, P.C. for these 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 Dept, 2d, 11th & 13th Jud Dists 2009]). As this claim was fully paid, any issue as to the medical necessity of the claim is moot and, thus, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted.

In support of the branch of its cross motion seeking summary judgment dismissing the remainder of the complaint, which sought to recover upon claims which had been denied on the ground of lack of medical necessity, defendant submitted a sworn independent medical examination (IME) report, which set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Thus, defendant made a prima facie showing of its entitlement to summary judgment dismissing these claims. In opposition to this branch of defendant’s cross motion, plaintiffs submitted an affidavit which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and [*2]as plaintiffs have not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the branch of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 16, 2013. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action; upon denying the branch of plaintiff’s motion seeking summary judgment upon the second cause of action, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor; and denied the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action. So much of the notice of appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is deemed to be from a judgment of the same court entered February 13, 2013 awarding plaintiff the principal sum of $750 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered January 16, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the first cause of action is vacated, and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal and insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action; denied the branch of plaintiff’s motion seeking summary judgment upon the second cause of action; denied defendant’s cross motion; and made, in effect, CPLR 3212 (g) findings that the only remaining issue for trial upon the second cause of action was defendant’s proof of mailing with respect to the denial of claim form. A judgment was subsequently entered on February 13, 2013 awarding plaintiff the principal sum of $750. On appeal, defendant argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment and that the branch of its cross motion for summary judgment dismissing the second cause of action should have been granted.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC [*2]Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff’s motion seeking summary judgment on its first cause of action should have been denied.

In support of the branch of its cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by its special investigator which set forth the standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff, and defendant also submitted a copy of the certified mail return receipt card bearing the subject claim number, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff failed to submit an affidavit in opposition to defendant’s cross motion, defendant’s proof that the denial of claim form had been timely mailed to plaintiff was unrebutted. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment dismissing the second cause of action, so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action is reversed and that branch of defendant’s cross motion is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the judgment is reversed, so much of the order entered January 16, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the first cause of action is vacated, and that branch of plaintiff’s motion is denied. In addition, the order, insofar as reviewed on direct appeal and insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 18, 2016

APPEARANCES OF COUNSEL

Law Office of Printz & Goldstein, Woodbury (Bryan P. Fauci of counsel), for appellant.

Law Offices of Ilona Finkelshteyn, P.C., Brooklyn (Marina Josovich of counsel), for respondent.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff’s assignor was injured in a motor vehicle accident while riding in a vehicle which was insured by a New Jersey automobile insurance policy. Plaintiff commenced the instant action to recover, among other things, assigned first-party no-fault benefits for the services it had rendered to its assignor, alleging that its claims were unpaid. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. In support of its cross motion, defendant argued, among other things, that New Jersey law controlled, and that New Jersey law and the subject insurance policy required that the matter be submitted to arbitration. Defendant did not move to compel arbitration pursuant to CPLR 7503 (a). By order entered July 10, 2014, the Civil Court denied both motions, but limited the issue for trial to medical necessity, finding that plaintiff had established that the claims had been mailed to, and received by, defendant and had not been paid, that the substantive law of New Jersey controlled, that the court did not lack jurisdiction, and that arbitration is not mandatory under New Jersey law.{**53 Misc 3d at 61}

As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment, contending, among other things, that the complaint should have been dismissed because the Civil Court improperly determined that the insurance policy did not mandate dispute resolution.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendments and endorsements are to be interpreted pursuant to the laws of the state of New Jersey,” the substantive law of New Jersey applies (see Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 50 Misc 3d 107, 108 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, New York’s procedural laws control. In Natural Therapy Acupuncture, P.C. and Bay Med. P.C., this court held that dispute resolution is not mandatory pursuant to New Jersey Statutes Annotated § 39:6A-5.1 (a), as implemented by New Jersey Administrative Code § 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273, 982 A2d 1, 2-3 [2009]), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute resolution upon the initiative of either party to the dispute. Similarly, the insurance policy in question provides that a matter may be submitted to dispute resolution “on [*2]the initiative of any party to the dispute.” However, the existence in a contract of an option to arbitrate in the event of a dispute is not a ground to dismiss the complaint in a court action based on that dispute. Rather, where one party commences a court action, the adverse party may seek to exercise the arbitration clause by moving to compel arbitration. If that motion is granted, the court stays the action pending arbitration (see CPLR 7503 [a]). Here, defendant has not moved to compel arbitration (see Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 50 Misc 3d 107 [2015]; Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [2013]). In view of the foregoing, we find no basis to disturb so much of the order as denied defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

Solomon, J.P., Aliotta and Elliot, JJ., concur.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 29, 2014. The judgment, insofar as appealed from as limited by the brief, entered pursuant to so much of an order of the same court as, upon granting plaintiff’s motion for summary judgment, directed that the judgment include an award of statutory interest pursuant to Insurance Law § 5106 (a), in the sum of $15,457.93, computed from April 30, 2002.

ORDERED that the judgment, insofar as appealed from, is modified by deleting the provisions thereof computing statutory interest pursuant to Insurance Law § 5106 (a) from April 30, 2002 and awarding interest in the sum of $15,457.93, and by providing that interest be computed from August 30, 2013; as so modified, the judgment, insofar as appealed from, is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of the statutory interest pursuant to Insurance Law § 5106 (a) in accordance herewith, and the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in April 2002. By order dated July 3, 2014, the Civil Court granted plaintiff’s motion for summary judgment and directed that the judgment include statutory interest. A judgment was entered pursuant to that order, which awarded plaintiff, among other sums, the principal amount of $5,255.74 and $15,457.93 in statutory interest (see Insurance Law § 5106 [a]), computed as of April 30, 2002. On appeal from the judgment, defendant limits its arguments to the award of statutory interest, contending that, due to plaintiff’s inaction, it should not have been awarded statutory interest or, in the alternative, that statutory interest should not begin to accrue until August 30, 2013, when plaintiff served a motion to compel discovery.

Where a provider does not commence a no-fault action within 30 days of receipt of the insurer’s denial of claim form, the Insurance Department Regulations provide that statutory prejudgment interest (see Insurance Law § 5106 [a]) does not begin to accumulate until an action is commenced (11 NYCRR 65—3.9 [c]). If an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the … court proceeding” (11 NYCRR 65—3.9 [d]). In this case, plaintiff took no meaningful action to prosecute the case until it served a motion to compel discovery on August 30, 2013. Plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th [*2]Jud Dists 2014]).

Accordingly, the judgment, insofar as appealed from, is modified by deleting the provisions thereof computing statutory interest from April 30, 2002 and awarding interest in the sum of $15,457.93, and by providing that interest be computed from August 30, 2013. The matter is remitted to the Civil Court for a recalculation of the statutory interest pursuant to Insurance Law § 5106 (a) and the entry of an appropriate amended judgment thereafter.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), entered June 10, 2014. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover assigned first-party no-fault benefits in the sum of $953.77. At a nonjury trial, plaintiff testified that he had performed certain testing on the patient, based on a referral from an orthopedic surgeon, without having inquired as to whether the testing was medically necessary. He stated that he had submitted a claim to defendant for $1,135, but only $181.23 of that claim had been paid, leaving a balance due of $953.77. Defendant’s expert witness, who was board-certified in physical medicine and rehabilitation, testified that there was a lack of medical necessity for the services at issue. Following the trial, the City Court dismissed the action in a judgment entered June 10, 2014.

In a small claims action, this court’s review is limited to a determination of whether “substantial justice has . . . been done between the parties according to the rules and principles of substantive law” (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

The issue at trial was whether the services in question were medically necessary. Plaintiff’s challenge to defendant’s expert witness’s qualifications to testify as to the lack of medical necessity, on the ground that the witness was not an orthopedic surgeon, goes to the weight and not to the admissibility of his testimony (see Vargas v Sabri, 115 AD3d 505 [2014]), and the City Court, as the trier of fact, was free to accept or reject his opinion. The City Court apparently accepted defendant’s expert witness’s testimony and implicitly found that defendant had satisfied its burden of demonstrating that the services were not medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). It was then plaintiff’s burden to prove, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2012]). As plaintiff failed to satisfy his burden, the City Court did not err in dismissing the action.

While plaintiff contends on appeal that he has a hearing impairment which prevented him from fully participating at trial, and that the City Court made no accommodations for his impairment, the record is devoid of any indication that plaintiff had such an impairment or that he had requested an accommodation therefor. This court may not consider matters which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]). Plaintiff’s remaining contentions are either unpreserved for appellate review or without merit.

Accordingly, as the court’s determination is supported by the record and provides the parties with substantial justice (see UCCA 1804, 1807), the judgment is affirmed.

Iannacci, J.P., and Tolbert, J., concur.

Marano, J., taking no part.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 4, 2014. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the action is barred by virtue of defendant’s workers’ compensation fee schedule defense.

ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination of defendant’s motion for summary judgment dismissing the complaint, in accordance with the decision herein.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied the claims at issue on the ground of lack of medical necessity, based on an affirmed independent medical examination report. In the supporting papers, defendant also argued that a portion of each claim sought to be recovered was in excess of the amount permitted by the workers’ compensation fee schedule and, thus, in any event, so much of the complaint as sought such excess amount should be dismissed. Defendant’s denial of claim forms indicate that no payments had been made on the claims. Plaintiff made no arguments and proffered no evidence in its opposition papers with respect to the fee schedule issue. By order dated June 4, 2014, the District Court granted defendant’s motion to dismiss the complaint, stating that the court’s “determination is made on the basis of defendant’s preserved fee schedule defense.”

Plaintiff argues on appeal that its opposition papers in the District Court were sufficient to raise a triable issue of fact as to both the fee schedule defense and defendant’s claim that the services rendered lacked medical necessity.

At the outset, we note that the District Court never addressed the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity. With respect to defendant’s workers’ compensation fee schedule defense, as defendant has indicated that it had made no payments on the claims, it was only seeking to dismiss so much of the complaint as sought to recover an amount in excess of the workers’ compensation fee schedule, and, thus, it was error for the District Court to have awarded defendant summary judgment dismissing the entire complaint on that basis. In view of the foregoing, the District Court should have first addressed defendant’s claim for summary judgment dismissing the [*2]complaint on the ground of lack of medical necessity, as that defense was potentially dispositive of the entire action.

Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination of defendant’s motion for summary judgment dismissing the complaint in accordance with this decision.

Marano, P.J., Tolbert and Garguilo, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 20, 2016

APPEARANCES OF COUNSEL

Nightingale Law, P.C., Glen Cove (Michael S. Nightingale of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondent.

Ordered that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that it had timely and properly denied plaintiff’s claim based on improper billing. The claim form, which had been submitted to defendant by plaintiff under her Social Security number, indicated that the services had been performed by her employee, Dr. Samuel Theagene. Plaintiff’s counsel described plaintiff as an “unincorporated solo practitioner,” conceded that plaintiff uses her own Social Security number when billing no-fault carriers, and contended that such use is proper even when billing for services of an employee. The Civil Court, in an order entered September 8, 2014, denied defendant’s motion, finding, among other things, that there were questions of fact regarding the relationship between plaintiff and the treating doctor. We reverse.

A billing provider seeking to recover no-fault benefits for services rendered to an assignor must provide, at the bottom of the claim form, a taxpayer identification number either in the form of a Social Security number or an employer identification number. Social Security numbers are used to identify individual persons, while employer identification numbers are used to identify employers (see 26 CFR 301.6109-1 [a] [1] [ii]). “An individual . . . who is an employer or who is engaged in a trade or business as a sole proprietor should use an employer identification number” (26 CFR 301.6109-1 [a] [1] [ii] [D]), since an employer identification number is required if the taxpayer “[p]ay[s] wages to one or more employees” (Internal Revenue Service Publication No. 334 [Tax Guide for Small Business], ch 1 [2015]). Thus, it is permissible for a billing provider operating{**54 Misc 3d at 45} as a sole proprietor to use his or her own Social Security number on the claim form if it is the billing provider who rendered the services in question. However, where, as here, a doctor bills for services rendered by a treating provider in that doctor’s employ, it is impermissible for the doctor to bill using his or her own Social Security number.

As defendant demonstrated that the claim form submitted by plaintiff was for services performed by plaintiff’s employee, that the claim form was submitted under plaintiff’s Social Security number, and that the denial of claim form based upon improper billing was mailed within 30 days of defendant’s receipt of the claim form, defendant established its entitlement to summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Elliot, J.P., Weston and Solomon, JJ., concur.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered November 12, 2014. The judgment, entered upon a decision of the same court dated February 4, 2014, after a nonjury trial, awarded plaintiff the principal sum of $7,590.60.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2014 is deemed a premature notice of appeal from the judgment entered November 12, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a New Jersey facility to recover assigned first-party no-fault benefits, the parties stipulated, prior to the commencement of a nonjury trial, that defendant had received plaintiff’s claim form seeking $7,590.60 for a facility fee for a manipulation under anesthesia (MUA) procedure performed at plaintiff’s facility and that defendant had issued a timely denial of claim form premised upon a lack of medical necessity, based on the peer review report of Dr. Robert Snitkoff, a licensed chiropractor, who had been certified in MUA. The sole witness to testify at trial was defendant’s witness, Dr. Paul Priolo, a licensed chiropractor, certified in MUA. Plaintiff stipulated to Dr. Priolo’s “credentials [and] expertise.” Dr. Priolo testified that he had concluded, based upon his review of Dr. Snitkoff’s peer review report and the documentation upon which the peer review report relied, that there was a lack of medical necessity for the MUA procedure.

In a decision after trial, the Civil Court (Philip S. Straniere, J.) found that Dr. Priolo was a credible witness and that his testimony had sufficiently demonstrated a lack of medical necessity. Because plaintiff had not submitted any evidence to the contrary, the Civil Court determined that “the action must be dismissed.” Nevertheless, the court, in its decision, which ultimately found for plaintiff in the sum of $7,590.60, stated the following: “This court has held that chiropractors cannot perform MUA in New York because it is considered a surgical procedure and only physicians may perform. Therefore opinion of chiropractor is not sufficient to establish lack of medical/chiropractic necessity of MUA or surgical center charge.” A judgment awarding plaintiff the principal sum of $7,590.60 was entered pursuant to the decision.

The issue in this case is not whether chiropractors are permitted to perform MUA, but [*2]rather whether defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff stipulated to Dr. Priolo’s expertise, and there is no indication in the record that Dr. Priolo was not competent to assert his opinion as to the lack of medical necessity of the procedure performed (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294 [2007]; see also Patil v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]) and, by extension, the facility fee which was sought in the claim in question. Dr. Priolo’s testimony, which the court found credible, demonstrated a factual basis and medical rationale for his determination that there was no medical necessity for the services at issue (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff called no witnesses to rebut Dr. Priolo’s testimony (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), we disagree with the Civil Court’s ultimate determination in favor of plaintiff and find that the Civil Court should have dismissed the complaint.

In view of the foregoing, we need not decide whether the Civil Court erred in finding that chiropractors cannot perform MUA procedures in New York.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Solomon and Elliot, JJ., concur.