November 16, 2018

Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, which denied the branches of defendant's cross motion seeking summary judgment dismissing claims for services billed under CPT codes 97810 and 97811. The main issue decided was whether the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers' compensation fee schedule. The court held that the proof submitted by the defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed and that the defendant had fully paid the plaintiff for the services billed under CPT codes 97810 and 97811 in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors. Therefore, the court reversed the order and granted the branches of the defendant's cross motion seeking summary judgment dismissing claims for services billed under CPT codes 97810 and 97811.

Reported in New York Official Reports at Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U))

Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U)) [*1]

Acupuncture Now, P.C. v GEICO Ins. Co.

2018 NY Slip Op 51643(U) [61 Misc 3d 142(A)]

Decided on November 16, 2018

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 16, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1377 K C

Acupuncture Now, P.C., as Assignee of Carlos, Illingworth, Respondent,
against
GEICO Ins. Co., Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 15, 2016. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much an order of the Civil Court as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811 on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers’ compensation fee schedule.

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant [*2]also demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 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]). Plaintiff failed to raise a triable issue of fact in opposition.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811 are granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018