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 (Dolores L. Waltrous, J.), entered April 24, 2008. The order denied defendant’s motion to sever the claim of each assignor into separate actions.

ORDERED that the order is reversed without costs and defendant’s motion to sever the claim of each assignor into separate actions is granted.

Plaintiff commenced this action to recover first-party no-fault benefits as assignee of two individuals. The claims allegedly arose out of two separate accidents. The Civil Court denied defendant’s motion pursuant to CPLR 603 to sever the causes of action into two separate actions.

Defendant’s answer clearly places at issue with respect to each assignor, among other things, the necessity and reasonableness of the particular medical services rendered. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). A severance can be properly based solely upon allegations set forth in the answer, and there is no need to demonstrate prejudice (see Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139[A], 2007 NY Slip Op 50997[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant’s motion to sever the causes of action should have been granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 07, 2009

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, Queens County (Thomas D. Raffaele, J.), entered August 5, 2008. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing plaintiff’s fourth and fifth causes of action.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action is granted; 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 so much of an order as implicitly denied its cross motion for summary judgment dismissing the fourth and fifth causes of action. The Civil Court held that an issue of fact exists as to the medical necessity of the services which are the subject of said causes of action.

The affidavits submitted by defendant were sufficient to establish that defendant’s denial of claim form, which denied the claim seeking to recover the sum of $425.44 (plaintiff’s fifth cause of action) on the ground of lack of medical necessity, was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, with respect to said claim, defendant was not precluded from asserting its defense of lack of medical necessity.

In support of its cross motion, defendant annexed an affidavit and a peer review report from the chiropractor who performed the peer review, which established a lack of medical necessity with respect to plaintiff’s $425.44 claim. In opposition thereto, plaintiff’s treating [*2]chiropractor submitted an affidavit in which he merely stated that the treatment was medically necessary, without setting forth any facts to support the conclusion. Consequently, plaintiff’s opposition papers failed to raise a triable issue of fact as to medical necessity (see Bronze Acupuncture, P.C. v Mercury Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51219[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fifth cause of action should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]).

With respect to plaintiff’s fourth cause of action seeking to recover the sum of $134.80 for services rendered from April 5 to April 17, 2006, defendant failed to establish that it had timely denied said claim. Accordingly, defendant’s cross motion for summary judgment dismissing plaintiff’s fourth cause of action was properly denied.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009

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, Queens County (Diane A. Lebedeff, J.), dated August 8, 2008. The order, insofar as appealed from as limited by the brief, implicitly denied defendant’s cross motion for summary judgment dismissing plaintiff’s first cause of action.

ORDERED that the order, insofar as appealed from, is reversed without costs, and defendant’s cross motion for summary judgment dismissing plaintiff’s first cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as relevant to this appeal, plaintiff moved for summary judgment upon its first cause of action and defendant cross-moved for summary judgment dismissing said cause of action. The Civil Court found that there is an issue of fact as to medical necessity and denied the motion and, implicitly, the cross motion. Defendant appeals, contending that its cross motion seeking the dismissal of the first cause of action should have been granted.

The affidavits submitted by defendant in opposition to plaintiff’s motion and in support of its cross motion established that defendant had timely denied the claim at issue on the ground of lack of medical necessity, in accordance with defendant’s standard office practice or procedure used to ensure that the denial of the claim form was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers the affidavit and peer review report of its chiropractor, that set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services rendered, which [*2]assertions were unrebutted (see e.g. 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]). Consequently, defendant established its prima facie entitlement to summary judgment with respect to plaintiff’s first cause of action, and plaintiff failed to raise a triable issue of fact with respect thereto. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing plaintiff’s first cause of action is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009

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 (Dawn Marie Jimenez, J.), entered July 11, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that 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 of the Civil Court granting plaintiff’s motion for summary judgment.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s supervisor of medical billing in support of the motion was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). In addition, as the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish actual mailing of the denial of claim forms or its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, as defendant was precluded from interposing its
defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court properly granted plaintiff’s motion for summary judgment. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009

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, Queens County (Rudolph E. Greco, Jr., J.), entered June 25, 2008, deemed from a judgment of the same court entered July 30, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

ORDERED that the judgment is affirmed without costs.

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

Contrary to defendant’s contention on appeal, the affirmations submitted by plaintiff’s president, a physician, in support of the motion were sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

On appeal, defendant characterizes its defense as one based upon fraud and relies solely on A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (3 Misc 3d 130[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists 2004]), in which the Appellate Term for the Ninth and Tenth Judicial Districts held that the insurer “establish[ed] the existence of a triable issue of fact as to whether there was a lack of coverage because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).” In the case at bar, defendant has not alleged that no motor vehicle accident occurred or [*2]that the accident was staged. Rather, defendant contends that it raised a triable issue as to whether the assignor’s daughter was in the car at the time of the accident. However, contrary to defendant’s contention, the assignor’s alleged misrepresentation of the presence of her daughter in the car is irrelevant to the question of whether the assignor’s injuries arose from an insured incident. Accordingly, as defendant failed to demonstrate the existence of a triable issue of fact in opposition to plaintiff’s motion for summary judgment, the judgment is affirmed.Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 7, 2008, deemed an appeal from an amended order of the same court entered October 29, 2008 (see CPLR 5520 [c]). The amended order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the amended order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the amended order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that there was a lack of coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise out of an insured incident. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that “[t]his has all the indicia of a staged accident.'” The instant appeal by plaintiff ensued.

Since defendant raised no issue in the District Court with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the District Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 2009

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 (Peter Paul Sweeney, J.), entered May 28, 2008. The order granted defendant’s motion for leave to reargue and, upon reargument, 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, defendant moved for leave to reargue its prior motion for summary judgment dismissing the complaint. The prior motion, which was predicated on the ground that neither defendant’s insured nor defendant’s insured’s vehicle was involved in the subject accident, had been denied with leave to renew upon proper papers, on the ground that a certificate of conformity was lacking. In support of its reargument motion, defendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.” In opposition to the motion, plaintiff submitted the affirmation of its attorney, in which the attorney argued, inter alia, that defendant’s affidavit was conclusory and did not establish defendant’s prima facie entitlement to judgment as a matter of law and that the “motion should not be heard prior to defense counsel’s adherence to the CPLR disclosure rules.” The Civil Court granted leave to reargue and, upon reargument, awarded defendant summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Defendant established its prima facie entitlement to judgment by showing that its insured’s vehicle was not involved in an accident in which plaintiff’s assignor was allegedly injured. Consequently, in order to defeat defendant’s motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2009]). Plaintiff, however, failed to rebut the assertions contained in defendant’s insured’s affidavit. Accordingly, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Mid Atl. Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered May 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,718.40.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested,
$1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2009

[*1]

Supreme Court, Appellate Term, Second Department, November 17, 2009

APPEARANCES OF COUNSEL

Law Offices of Eva Gaspari, PLLC, Brooklyn, and Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**26 Misc 3d at 24} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant had partially paid plaintiff’s claim prior to the commencement of the action. At trial, the parties stipulated to plaintiff’s prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate fee schedule. Additionally, pursuant to the parties’ stipulation, the claim form and the denial of claim form were admitted into evidence. After a nonjury trial on the issue of the propriety of the fees charged, the Civil Court granted judgment to defendant dismissing the complaint, and this appeal by plaintiff ensued.

A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]). Indeed, at trial, plaintiff’s witness, who was both a licensed acupuncturist and a licensed chiropractor, so testified. Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004] [http://www.ins.state.ny.us/ogco2004/rg041003.htm (accessed Nov. 25, 2009)]). Consequently, [*2]since it is undisputed that the instant defendant reimbursed{**26 Misc 3d at 25} plaintiff pursuant to the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement. Accordingly, the judgment dismissing the complaint is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.

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, Queens County (Diane A. Lebedeff, J.), entered September 29, 2008, deemed from a judgment of the same court entered November 6, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 29, 2008 order which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $168.50.

ORDERED that the judgment is reversed without costs, the order entered September 29, 2008 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered to plaintiff’s assignor were not medically necessary. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. The Civil Court denied defendant’s motion, finding that defendant had failed to show that it had timely denied plaintiff’s claims, and granted plaintiff’s cross motion for summary judgment. Defendant appeals from the order. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the finding of the Civil Court, defendant demonstrated, based upon its standard office practice and procedure used to ensure that claim denial forms are properly addressed and mailed, that it timely mailed the denial of claim forms at issue (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; AJS Chiropractic, P.C. v Mercury Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50208[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, the report of the independent chiropractic/acupuncture examination performed on plaintiff’s assignor, accompanied by the examiner’s affidavit, was in admissible form, and provided a factual basis and medical rationale for defendant’s chiropractor’s opinion that the services at issue were not medically necessary (see AJS Chiropractic, P.C., 22 [*2]Misc 3d 133[A], 2009 NY Slip Op 50208[U]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]).

Since the affidavit of plaintiff’s chiropractor, which did not meaningfully refer to or discuss the conclusion of defendant’s chiropractor, was insufficient to rebut defendant’s prima facie showing (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]), defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 13, 2009