S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51004(U))

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered October 11, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 28, 2015 and April 19, 2016, and so much of the unpaid portion of the claims billed using CPT codes 97810, 97811, 99202, and 99212, and the claims billed using CPT code 97026, except for dates of service December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, are 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 moved for summary judgment dismissing the complaint on the grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), that a portion of one claim was submitted more than 45 days after the subject services had been rendered, and that the amounts plaintiff sought to recover upon the remaining claims exceeded the amount permitted by the workers’ compensation fee schedule. In opposition to defendant’s motion, plaintiff only submitted an affirmation from plaintiff’s counsel. By order entered October 11, 2018, the Civil Court denied defendant’s motion.

In support of its motion, defendant submitted an affidavit which sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). To the extent plaintiff’s counsel argued that the IME scheduling letters had been mailed to the wrong address, the record demonstrates conclusively that the address to which the IME scheduling letters had been mailed matched the one provided by plaintiff’s assignor on the assignor’s handwritten, sworn application for no-fault benefits (NF-2) which was submitted to defendant. Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper (see Valdan Acupuncture, [*2]P.C. v 21st Century Advantage Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim for services rendered on April 19, 2016 on that ground, and plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s motion, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on April 19, 2016.

With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on December 28, 2015, the affidavit of defendant’s claims adjuster established that the claim for services rendered on December 28, 2015 had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim form, which denied the claim on that ground. Furthermore, defendant’s denial of claim form advised plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided (11 NYCRR 65-2.4 [c]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on December 28, 2015 should have been granted.

With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of plaintiff’s claims which were denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant established that it had fully paid plaintiff for the services billed under CPT codes 97810, 97811, 99202, and 99212 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Likewise, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97026, except for the services rendered on December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see id.). Thus, defendant established its prima facie entitlement to summary judgment upon the unpaid portion of those claims. As plaintiff failed to raise a triable issue of fact, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of those claims should have been granted. However, as defendant concedes that the affidavit of its professional fee schedule coder stated that plaintiff was entitled to recover upon claims seeking payment for services billed using CPT 90739, defendant is not entitled to summary judgment with respect to those claims.

Accordingly, the order is modified by providing that the branches of defendant’s motion [*3]seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 28, 2015 and April 19, 2016, and so much of the unpaid portion of the claims billed using CPT codes 97810, 97811, 99202, and 99212, and claims billed using CPT code 97026, except for dates of service December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, are granted.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.