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, Queens County (Maureen A. Healy, J.), entered November 15, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered November 15, 2010 as granted the branches of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered November 15, 2010 as granted defendant’s motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501 [c]).

Plaintiff brought this suit to recover upon three claims which defendant had denied based [*2]upon the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). Contrary to plaintiff’s argument on appeal, defendant established the mailing of the IME scheduling letters, by submitting an affidavit by an employee of the entity which had sent the letters, which affidavit sufficiently demonstrated that the IME scheduling letters had been mailed in accordance with that entity’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff’s argument that the assignor was not required to respond to those IME requests because they came from a third party lacks merit, as the letters “clearly apprised the assignor” that they “were being sent on defendant’s behalf” (Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]). As plaintiff raises no other argument with respect to its claim for $171.36, for dates of service September 3 and 4, 2008, the branch of defendant’s motion seeking summary judgment dismissing this claim was properly granted.

However, defendant was not entitled to summary judgment dismissing plaintiff’s claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, because, according to the proof submitted by defendant in support of its motion, the first IME had not been scheduled to be held within 30 days of defendant’s receipt of those claims, as required by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d).

Accordingly, the judgment is reversed, so much of the order entered November 15, 2010 as granted the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant’s motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 31, 2012

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 (Lisa S. Ottley, J.), entered April 30, 2010, deemed from a judgment of the same court entered August 23, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 30, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered April 30, 2010 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claim on the ground of lack of medical necessity.

As to the $194.58 billed for a diagnostic interview (procedure code 90801), we find that there is an issue of fact and that, therefore, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $194.58 for procedure code 90801 should have been denied.

As to the remaining three services at issue, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for these
services. Since defendant’s prima facie showing as to these three services was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover for these services (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, 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 & 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 & 11th Jud Dists 2007]). Plaintiff’s remaining contentions on appeal as to these services lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, we leave undisturbed so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Accordingly, the judgment is reversed, so much of the order entered April 30, 2010 as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon plaintiff’s claim for $194.58 for procedure code 90801 is vacated, and that branch of defendant’s cross motion is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 (Lisa S. Ottley, J.), entered April 26, 2010, deemed from a judgment of the same court entered July 20, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claim on the ground of lack of medical necessity. In addition, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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, 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 & 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 & 11th Jud Dists 2007]). Plaintiff’s remaining contentions on appeal lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 (Lisa S. Ottley, J.), entered April 26, 2010, deemed from a judgment of the same court entered July 28, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claim on the ground of lack of medical necessity. In addition, defendant submitted a sworn peer review report which set forth a factual basis and a medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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, 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 & 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 & 11th Jud Dists 2007]). Plaintiff’s remaining contentions on appeal lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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 (Dawn Jimenez Salta, J.), entered March 9, 2010, deemed from a judgment of the same court entered August 10, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 9, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted a [*2]sworn independent medical examination report which set forth a factual basis and a medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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, 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 & 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 & 11th Jud Dists 2007]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 28, 2011, as denied its cross motion for a protective order and granted defendant’s motion to compel plaintiff to produce its principal for deposition.

Per Curiam.

Order (Fernando Tapia, J.), entered February 28, 2011, insofar as appealed from, reversed, with $10 costs, defendant’s motion to compel plaintiff to produce its principal for deposition denied and plaintiff’s cross motion for a protective order granted.

The defendant-insurer’s notice of deposition—pertaining to its defense of provider fraud based on fraudulent billing practices—was palpably improper (see Dhue v Midence, 1 AD3d 279 [2003]), since defendant is precluded from raising this defense due to its failure to timely deny plaintiff’s no-fault first-party claim within the 30-day statutory period (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008]). This is so irrespective of defendant’s claim that the fraudulent billing was part of a widespread scheme to defraud insurers (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 285 [2007], affd 10 NY3d 556 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2012

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 (Lisa S. Ottley, J.), entered April 29, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

Contrary to plaintiff’s arguments on appeal, the affidavit submitted by defendant’s litigation examiner was sufficient to establish that defendant had timely denied the claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In addition, defendant submitted an affirmed independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. As plaintiff’s remaining contentions lack merit, defendant was [*2]entitled to summary judgment dismissing the complaint (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, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 27, 2012

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, Queens County (Richard G. Latin, J.), entered March 24, 2011. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $1,712.58, $49.26 and $67.60.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $1,712.58, $49.26 and $67.60 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for $1,712.58, $49.26 and $67.60.

In support of its motion, defendant submitted an affirmed independent medical examination (IME) report and an affirmed peer review report, each of which set forth a factual basis and a medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affirmation from [*2]a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report and the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2010 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on the relevant claims, the order is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $1,712.58, $49.26 and $67.60 are 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, 11th & 13th Jud Dists 2009]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 24, 2012

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 (Dawn Jimenez Salta, J.), entered March 10, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of awarding defendant summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit of defendant’s claims division employee established, with respect to plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80, that defendant’s denial of claim forms had been timely [*2]mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). It is undisputed that defendant had made timely partial payments on the latter two claims. Moreover, defendant annexed to its cross motion papers an affirmed peer review report and an affirmed independent medical examination report which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the services at issue in the above four claims. Defendant’s showing of lack of medical necessity was unrebutted by plaintiff. In view of the foregoing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the above four claims were properly granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [App Term, 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 & 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 & 11th Jud Dists 2007]).

However, defendant failed to establish that it had timely denied two claims, each seeking to recover the sum of $838.95 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover upon these claims.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of awarding defendant summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $793.24 and $274.20 and the unpaid portions of plaintiff’s claims in the sums of $3,227.26 and $878.80.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 24, 2012

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 24, 2009. The judgment, entered pursuant to an order of the same court granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment. Plaintiff appeals from a judgment which was subsequently entered dismissing the complaint.

Contrary to plaintiff’s contentions, defendant’s moving papers established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the claims which were denied based upon the workers’ compensation fee schedule, defendant demonstrated that it had fully paid plaintiff the amount to which plaintiff was entitled in accordance with the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor (see Great Wall [*2]Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). With respect to the claims which were denied based upon an independent medical examination (IME) performed by defendant’s acupuncturist, the sworn IME report established a lack of medical necessity for the services, and the affidavit of plaintiff’s acupuncturist did not meaningfully refer to, let alone rebut, the conclusions of defendant’s acupuncturist (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In light of the foregoing, defendant’s motion for summary judgment dismissing the complaint was properly granted and plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 24, 2012