SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 27, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Appeal from an order of the same court entered December 22, 2005. The order, insofar as appealed from, in effect, vacated the judgment entered November 2, 2005 pursuant to the order entered June 27, 2005, granted plaintiff’s motion for reargument and, upon reargument, denied defendant’s cross motion for summary judgment. [*2]

On the court’s own motion, appeals consolidated for purposes of disposition.

Appeal from so much of the order entered June 27, 2005 as granted defendant’s cross motion for summary judgment dismissed as superseded.

Order entered June 27, 2005, insofar as reviewed, affirmed without costs.

Order entered December 22, 2005, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved for summary judgment on the ground that the subject insurance policy was canceled approximately one month prior to the accident. In an order entered June 27, 2005, the court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action on the ground of lack of coverage due to cancellation of the insurance policy. Plaintiff appealed from said order and moved for reargument. While the motion and plaintiff’s appeal were pending, a judgment was entered on November 2, 2005 dismissing the action. In an order entered December 22, 2005, the court granted plaintiff’s motion to the extent of, in effect, vacating the judgment, granting reargument and, upon reargument, denying defendant’s cross motion for summary judgment, holding that defendant did not present evidence in admissible form establishing that the insurance policy was canceled. Defendant appeals from so much of the order entered December 22, 2005 by which it is aggrieved.

Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court denied plaintiff’s motion for summary judgment on the ground that the affidavit did not contain any facts relevant to the action and plaintiff failed to support its motion with admissible evidence.

Since the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment was properly denied, and thus the order entered June 27, 2005 is affirmed insofar as reviewed.

While the parties disagree as to which statute governed with respect to the cancellation of the subject insurance policy, it is beyond dispute that in support of its cross motion for summary judgment, defendant was required to establish, prima facie, that it mailed the notice cancelling the subject insurance policy (see Vehicle and Traffic Law § 313). Defendant failed to meet its burden upon its cross motion for summary judgment because it did not submit an affidavit from someone with personal knowledge which was sufficient to establish that the cancellation notice was mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, the order entered December 22, 2005 is affirmed insofar as appealed from.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*3]
Decision Date: April 27, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admissibility, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: April 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 8, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff, a licensed acupuncture health care provider, submitted claims based, inter alia, on acupuncture treatments provided assignor in 2001. In April 2001, defendant paid the claims at a reduced rate, with the explanation that, in the absence of a provision in the Workers’ Compensation Fee Schedule for such treatments, defendant was authorized to approve benefits based on what it had determined to be “a reasonable and customary fee for physical therapy.” Plaintiff sued to recover the unpaid balance, and moved for summary judgment arguing that defendant’s reduction in benefits was not authorized. In its cross motion for summary judgment, defendant insisted that the regulations and opinions of the New York State Insurance Department entitled defendant, in the absence of a fee schedule for acupuncture treatments provided by a licensed acupuncturist, to substitute therefor fee schedules promulgated “for similar procedures under schedules already adopted or established by the superintendent,” in this case, physical therapy. In reply, the plaintiff did not controvert defendant’s claim that physical therapy was a sufficiently similar procedure to merit application of the relevant fee schedules. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

On appeal, plaintiff claims, inter alia, that it was entitled to summary judgment and that [*2]the denials of claims issued by defendant were insufficient because they failed to set forth a sufficiently detailed factual basis and medical rationale for defendant’s conclusion that the fee charged by plaintiff for acupuncture services exceeded the compensation rate for physical therapy as set forth in the fee schedule. For the
reasons set forth below, we are of the opinion that the compensation analysis adopted by the defendant is applicable to the claims herein, and that the order should be affirmed.

Insurance Law § 5102 (a) (1) defines “basic economic loss” to include “all necessary expenses incurred for . . . professional health services” subject to the limitations of Insurance Law § 5108. The latter statute limits the amounts to be charged by providers of health services, and states that the charges for services specified in Insurance Law § 5102 (a) (1) “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board . . . except where the insurer . . . determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). The statute also authorizes the Superintendent of Insurance to “promulgate rules and regulations implementing and coordinating the provisions of” the No-Fault Law and the Workers’ Compensation Law with respect to charges for the professional health services specified in Insurance Law § 5102 (a) (1), “including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the workers’ compensation board” (Insurance Law § 5108 [b]).

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance (Insurance Law § 301), who has “broad power to interpret, clarify, and implement the legislative policy” (Ostrer v Schenk, 41 NY2d 782, 785 [1977]). It is a well-established principle of law that the Superintendent’s interpretation of its regulations, “if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; Matter of Medical Socy. of
State of N.Y. v Serio, 100 NY2d 854, 864 [2003]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Part 68 (also known as Regulation 83) of the New York Insurance Department Regulations governs the charges for professional health services. The regulations provide that the “existing fee schedules prepared and established by the chairman of the Workers’ Compensation Board . . . are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law” (11 NYCRR 68.1 [a]). The fee schedules for professional health services referred to in Insurance Law § 5102 (a) (1), for which schedules have not been prepared and established by the Workers’ Compensation Board, may be established by the Superintendent, and are made part of
Appendix 17-C of the regulations (11 NYCRR 68.2). Appendix 17-C does not contain a fee schedule for acupuncture services performed by a licensed acupuncturist.

The New York State Department of Insurance has stated that medically necessary acupuncture services rendered by a licensed acupuncturist are covered expenses, and are eligible for reimbursement under Insurance Law § 5102 (a) (1) (see Ops Gen Counsel NY Ins Dept 04-0[*3]1-01). After the health services at issue herein were provided and the claims based thereon were submitted, the Superintendent promulgated fee schedules for acupuncture services provided by chiropractors licensed to administer acupuncture and by doctors certified to administer acupuncture. At the time plaintiff provided its services, however, there were no fee schedules for acupuncture services and there remain no schedules for licensed acupuncturists. Where, as here, a professional health service has been performed which is reimbursable under Insurance Law § 5102 (a) (1), but such service is performed by a type of provider which is not included in the fee schedules established by the Workers’ Compensation Board, and if the Superintendent of Insurance has not adopted or established a fee schedule applicable to the particular type of provider, “then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

Defendant invoked its option to apply a rate “for similar procedures under schedules already adopted or established by the superintendent (11 NYCRR 68.5 [b] [emphasis added]), and plaintiff did not rebut defendant’s contention below that physical therapy is a sufficiently “similar procedure” to entitle defendant to impose a lesser rate based on the fee schedules for such services. Accordingly, the order granting defendant’s cross motion for summary judgment and denying plaintiff’s motion for summary judgment is affirmed.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: April 26, 2007

[*1]

Supreme Court, Appellate Term, Second Department, April 25, 2007

APPEARANCES OF COUNSEL

Cambio Votto Cassata & Gullo, Staten Island (Thomas J. Kilbane of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Florence Zabokritsky of counsel), for respondent.

{**16 Misc 3d at 5} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order entered December 16, 2005 vacated, plaintiff’s cross motion for summary judgment denied, defendant’s motion for summary judgment granted to the extent of awarding it partial summary judgment dismissing plaintiff’s claims in the amounts of $1,280.30 and $1,017, and matter remanded to the court below for all further proceedings.

Plaintiff commenced this action to recover $3,024.05 in first-party no-fault benefits for medical supplies provided to its assignor on the ground that payment of no-fault benefits was overdue. Thereafter, defendant moved for summary judgment. The parties entered into a stipulation of settlement adjourning the return date of defendant’s motion until December 16, 2005. The stipulation also provided that plaintiff was to serve its opposition papers by November 9, 2005 and defendant was to serve its reply papers by December 9, 2005. On December 13, 2005 plaintiff served defendant by mail with opposition papers and a cross motion for summary judgment. While a party may serve a cross motion at least three days prior to the [*2]time at which a motion is noticed to be heard (see CPLR 2215), where, as here, a party serves a cross motion by mail, an additional five days must be added (see CPLR 2103 [b] [2]; D’Aniello v T.E.H. Slopes, 301 AD2d 556 [2003]; Perez v Perez, 131 AD2d 451{**16 Misc 3d at 6} [1987]). A party’s failure to comply with CPLR 2215 may generally be excused in the absence of prejudice (see Walker v Metro-North Commuter R.R., 11 AD3d 339 [2004]). In the case at bar, however, the lower court improvidently considered and granted plaintiff’s cross motion for summary judgment since defendant was not afforded an opportunity to respond thereto (see Flannery v Goldsmith, 268 AD2d 267 [2000]). Likewise, the lower court improvidently exercised its discretion in accepting and considering plaintiff’s untimely opposition papers since the plaintiff failed to provide any excuse for its delay, and defendant was prejudiced by the court’s failure to allow defendant an opportunity to submit reply papers (see Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]).

With regard to the merits of defendant’s motion for summary judgment, the affidavit of defendant’s no-fault examiner sufficiently established that defendant timely denied plaintiff’s claims for the sums of $1,280.30 and $1,017 by setting forth in detail defendant’s office practice and procedure for the mailing of denial of claim forms (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The aforementioned bills were denied on the ground that the fees charged were excessive and the supplies provided were not medically necessary based upon the attached affirmed peer review report. In its motion, defendant made out a prima facie case that the supplies provided in the aforementioned claims were not medically necessary. As a result, the burden shifted to plaintiff to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Since, under the circumstances presented, plaintiff’s opposition papers should not have been considered by the court, plaintiff did not establish a triable issue of fact as to the aforementioned claims.

Further, the affidavit of defendant’s no-fault examiner established that defendant received plaintiff’s claim for the sum of $726.75 on July 2, 2004. The no-fault examiner stated that defendant sent plaintiff a timely request for verification and, after receiving the requested verification, timely denied said claim. However, the record did not establish when the verification request pertaining to this claim was mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006], supra). Defendant did not prove that its time to pay or deny the claim was tolled as a result of the alleged verification request such{**16 Misc 3d at 7} that the denial of claim ultimately issued by defendant was timely. Consequently, defendant failed to sustain its burden of demonstrating its entitlement to judgment as a matter of law upon this claim. Accordingly, defendant’s motion for summary judgment should have been granted to the extent of awarding it partial summary judgment dismissing plaintiff’s claims for the sums of $1,280.30 and $1,017.

Pesce, P.J., Golia and Belen, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, April 24, 2007

APPEARANCES OF COUNSEL

Teresa M. Spina, Woodbury (Michael Theodorou of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for respondent.

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

Memorandum.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment denied, and, upon searching the record, summary judgment granted in favor of defendant dismissing the action.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider moved for summary judgment. In an affirmation in support of the motion, plaintiff’s counsel stated that plaintiff billed defendant for 35 sessions of acupuncture with its licensed acupuncturist at a rate of $90 per session, for a total of $3,150. Defendant paid plaintiff for 35 sessions at a reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services, for a total of $1,025.50. Plaintiff sought full reimbursement, or the remaining $2,124.50, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated. Plaintiff’s counsel stated that the prevailing fee for acupuncture services performed by licensed acupuncturists in New York City was between $85 and $100 per session, and added that said amounts were warranted given the extensive training required in order to become a licensed acupuncturist. [*2]

Defendant, in opposition, showed that it timely mailed its claim denial forms, which partially denied plaintiff’s claims on the ground that the fees charged by plaintiff exceeded the maximum allowance under the applicable fee schedules. An employee of its claims division, who was responsible, inter alia, for reviewing fee schedules, noted in her affidavit that, since the workers’ compensation fee schedule did not specifically address acupuncture services performed by a licensed acupuncturist{**16 Misc 3d at 25} who was neither a licensed physician nor a licensed chiropractor, defendant had reviewed the acupuncture fee schedules “already adopted or established by the superintendent” (i.e., for licensed physicians and licensed chiropractors), pursuant to the mandates of 11 NYCRR 68.5 (b), and had concluded that licensed acupuncturists should be reimbursed at a rate consistent with the amount established in the fee schedule for licensed chiropractors in the geographic region, or at $29.30 per session (as opposed to the amount established in the fee schedule for acupuncture services performed by a physician, which would have called for a payment of $42.84 per session for that geographic region). This conclusion was deemed by defendant to be “reasonable and appropriate, given a comparison of the New York State requirements regarding the educational level, experiential requirements and licensing requirements for medical doctors, chiropractors and individuals simply licensed to perform acupuncture.”

The court below granted plaintiff’s motion for summary judgment, and defendant appealed, contending that plaintiff had been properly reimbursed in accordance with the rates set forth in the existing fee schedules. At issue is the appropriate fee to be paid for acupuncture services rendered by a licensed acupuncturist.

Insurance Law § 5102 (a) (1) defines “basic economic loss” as including “[a]ll necessary expenses incurred for . . . professional health services” subject to the limitations of Insurance Law § 5108. The latter statute limits the amounts to be charged by providers of health services, and states that the charges for services specified in Insurance Law § 5102 (a) (1) “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board . . . except where the insurer . . . determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). The statute also authorizes the Superintendent of Insurance to “promulgate rules and regulations implementing and coordinating the provisions of” the No-Fault Law and the Workers’ Compensation Law with respect to charges for the professional health services specified in Insurance Law § 5102 (a) (1), “including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the workers’ compensation board” (Insurance Law § 5108 [b]).

Part 68 (also known as Regulation 83) of the New York Insurance Department Regulations (11 NYCRR) governs the charges{**16 Misc 3d at 26} for professional health services. The regulations provide that the “existing fee schedules prepared and established by the chairman of the Workers’ Compensation Board . . . are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law” (11 NYCRR 68.1 [a]). The fee schedules for professional health services referred to in Insurance Law § 5102 (a) (1), for which schedules have not been prepared and established by the Workers’ Compensation Board, may be [*3]established by the Superintendent, and are made part of Appendix 17-C of the regulations (11 NYCRR 68.2). Appendix 17-C does not contain a fee schedule for acupuncture services performed by a licensed acupuncturist.

The New York State Department of Insurance has stated that medically necessary acupuncture services rendered by a licensed acupuncturist are covered expenses, and are eligible for reimbursement under Insurance Law § 5102 (a) (1) (see Ops Gen Counsel NY Ins Dept No. 04-01-01). Where, as here, a professional health service has been performed which is reimbursable under Insurance Law § 5102 (a) (1), but such service is performed by a provider which is not included in the fee schedules established by the Workers’ Compensation Board, and if the Superintendent of Insurance has not adopted or established a fee schedule applicable to the particular provider, “then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

The Department of Insurance has also concluded that while a licensed acupuncturist may bill an insurer for services rendered based upon the prevailing rate charged by other licensed acupuncturists in the same geographic area, “such billed fees may be reduced by insurers to those fees established in existing fee schedules for similar procedures reimbursable at fee rates in existing fee schedules, pursuant to section 68.5 (b) in Department Regulation 83” (see Ops Gen Counsel NY Ins Dept No. 04-10-03). The Department has specifically stated that it is:

“reasonable and appropriate, as well as consistent with the intent of Section 68.5 (b), for an insurer to reduce a prevailing regional rate when there is an established fee for similar services. . . . [W]ere a{**16 Misc 3d at 27} No-Fault insurer to review and equate services provided by a licensed acupuncturist as similar to acupuncture services provided by doctors or chiropractors, and such rate is less than the prevailing regional fee rate, it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary{**16 Misc 3d at 28} services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service.” (Ops Gen Counsel NY Ins Dept No. 04-10-03.)

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance (Insurance Law § 301), who has “broad power to interpret, clarify, and implement the legislative policy” (Ostrer v Schenck, 41 NY2d 782, 785 [1977] [internal quotation marks omitted]). It is a well-established principle of law that the Superintendent’s interpretation of its regulations, “if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; Matter of Medical Socy. of State of N.Y. v Serio, 100 [*4]NY2d 854, 864 [2003]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We are in agreement with defendant that the lower court erred in granting plaintiff’s motion for summary judgment. In support of its motion for summary judgment, plaintiff argued, in a conclusory affirmation of counsel, in anticipation of defendant’s position in opposition to the motion, that a licensed acupuncturist should receive a higher rate of reimbursement than the scheduled fee for acupuncture services rendered by a physician or a chiropractor because of the acupuncturist’s extensive training in the area. Significantly, plaintiff did not argue that the services performed by its licensed acupuncturist were dissimilar from acupuncture services listed for a physician or for a chiropractor provider on the established fee schedules, and that it was therefore entitled to a different reimbursement rate.

In opposition to the motion, defendant argued that it was following the guidelines of the Department of Insurance which authorized the insurer “to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service” (Ops Gen Counsel NY Ins Dept No. 04-10-03), that it had reviewed the amounts charged by plaintiff “for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent,” and that, based upon a comparison of the training and experience of licensed acupuncturists, physicians and chiropractors who perform acupuncture services, it was reducing the fee for the acupuncture services provided by plaintiff to the rates already adopted or established for chiropractors performing a similar service, in accordance with the provisions of 11 NYCRR 68.5 (b). We note that even though the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians, the Department of Insurance did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware of this differential (see Ops Gen Counsel NY Ins Dept 04-10-03).

Plaintiff’s sole ground for summary judgment, i.e., that its rate of reimbursement should exceed the amounts prescribed in the fee schedules for both physicians and chiropractors because of the extensive training and experience required to become a licensed acupuncturist, has therefore been rejected by the Department of Insurance, which limited the fee for licensed acupuncturists to either one or the other. In view of the fact that there has been a lack of clarity regarding the appropriate fee schedule to apply for acupuncture services rendered by licensed acupuncturists, and since there has been increasing litigation on the issue, we strongly urge the Superintendent of Insurance to consider adopting a separate fee schedule for health services rendered by licensed acupuncturists. However, in the absence of same, upon the record presented, we apply the chiropractor fee schedule to the instant services. While physicians who practice acupuncture need only obtain certification in order to perform acupuncture (see Education Law § 8216; 8 NYCRR 60.9), chiropractors who practice acupuncture must be licensed to do so (see Education Law § 8214). Thus, licensed acupuncturists and chiropractors who wish to practice acupuncture are subject to similar training and educational requirements.

Under the circumstances presented herein, since it is undisputed that defendant has fully [*5]paid plaintiff the amounts{**16 Misc 3d at 29} to which it is entitled under the fee schedules for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, the action is dismissed.

We note that inasmuch as plaintiff’s constitutional arguments were not raised in the court of first instance, they were not preserved for appellate review, and we therefore decline to reach them (see Giordano v O’Neill, 131 AD2d 722 [1987]).

Rios, J. (concurring in part and dissenting in part in the following memorandum). Although I am in agreement with the majority that the judgment should be reversed, the order granting plaintiff’s motion for summary judgment vacated, and plaintiff’s motion for summary judgment denied, in my opinion, we should not search the record to grant summary judgment in favor of defendant dismissing the action. Rather, the matter should be remanded for a trial on developed facts as to which specific services were provided by plaintiff to its assignor. While it is true that workers’ compensation fee schedules have been established for acupuncture services performed by a chiropractor, the record is silent as to whether the subject billing refers to treatment which is usually rendered by a chiropractor within the scope of his or her chiropractic license (see Education Law § 6551), or whether the billed services are for treatment for which a license as an acupuncturist is needed (see Education Law § 8214), in which event, the procedures performed by plaintiff’s acupuncturist would be sufficiently dissimilar from those rendered by a chiropractor that the fee schedules established for chiropractors should not be invoked.

Weston Patterson, J.P., and Belen, J., concur; Rios, J., concurs in part and dissents in part in a separate memorandum.

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 (Bonnie P. Chaikin, J.), entered March 15, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for renewal of its prior motion for summary judgment.

Order, insofar as appealed from, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The motion was supported by an affirmation of counsel, an affidavit of an officer of plaintiff, and various documents annexed thereto.
In opposition to plaintiff’s motion, defendant argued, inter alia, that the affirmation of counsel was of no probative value and that the affidavit of plaintiff’s officer was insufficient to establish personal knowledge of the facts set forth therein. The court below denied plaintiff’s motion on this basis and plaintiff moved to renew the motion, annexing a more detailed affidavit of its officer. The court below denied the motion to renew on the ground that plaintiff failed to set forth any facts not previously known to plaintiff at the time of submission of the original motion. The instant appeal ensued.

CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior [*2]determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its renewal motion was based to the motion court on its prior motion for summary judgment (see T&B Port Washington, Inc. v McDonough, 32 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff which purportedly represented such changes were neither dispositive of the
issue of the sufficiency of plaintiff’s officer’s affidavit nor did they actually represent changes in the decisional law. Accordingly, the motion was properly denied.

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 19, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated December 27, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s employee failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to plaintiff’s moving papers. Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff’s motion for summary judgment should have been denied.

To the extent defendant asks this court to search the record and grant it summary judgment, defendant is not entitled to such relief since, among other things, the record does not contain any proof that defendant’s denials were timely issued.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered November 18, 2005, deemed an appeal from a judgment entered on January 3, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2005 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the sum of $55,272.72.

Judgment reversed without costs, the branch of the November 18, 2005 order which granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to dismiss the complaint for lack of subject matter jurisdiction. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

While plaintiff listed in its complaint under the heading “First Cause of Action” all three of its claims for no-fault benefits, the recovery of which was assigned to it by three different assignors, it is clear that all three claims were separate and distinct and each was within the Civil Court’s monetary jurisdictional limit of $25,000 (CCA 202, 211; see Karp v Manhattan Mtge. Co., Inc., 11 Misc 3d 142[A], 2006 NY Slip Op 50699[U] [App Term, 1st Dept]). Therefore, the court below properly denied defendant’s cross motion to dismiss the action for lack of subject [*2]matter jurisdiction.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the judgment is reversed, the branch of the order entered November 18, 2005 which granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 03, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered January 25, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer was insufficient to submit proof in admissible form. The court below denied the motion on
the ground that plaintiff failed to make a prima facie case. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 17, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment
of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

In opposition to plaintiff’s motion, defendant’s attorney stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at an examination under oath (EUO). As plaintiff [*2]correctly asserted, defendant was required to establish by proof in admissible form that the EUO scheduling letters were mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant submitted an affidavit from an administrative assistant who stated that the first request was forwarded to plaintiff’s assignor and that she forwarded a second request to plaintiff’s assignor. Her affidavit was insufficient because she did not state that she actually mailed the letters and since she did not set forth proof of defendant’s office practice or procedure designed to ensure that items are properly addressed and mailed, it did not give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, because defendant did not
establish that the EUO scheduling letters were mailed, defendant failed to raise a triable issue of fact.

In view of the foregoing, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007