Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51460(U))

Decided on October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-2497 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered September 3, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover on claims for services billed under CPT codes 97810 and 97811, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover $80 on a claim for a service billed under CPT code 99203 only to the extent of awarding plaintiff the principal sum of $54.74 thereon, and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover on the claims for services billed under CPT codes 97810 and 97811, and so much of the complaint as sought to recover the additional sum of $25.26 on the claim for a service billed under CPT code 99203.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. By order entered September 3, 2014, the Civil Court granted plaintiff’s motion to the extent of awarding it $54.74 on its $80 claim for a service billed under CPT code 99203, based upon a workers’ compensation fee schedule reduction, denied the remainder of plaintiff’s motion, and granted the branches of defendant’s cross motion seeking to dismiss the remainder of the complaint, which sought to recover for services billed under CPT codes 97810 and 97811, and so much of the complaint as sought to recover the additional $25.26 on the claim for a service billed under CPT code 99203. Plaintiff appeals, arguing that its motion should have been granted in its entirety and that defendant’s cross motion should have been denied in its entirety.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its cross [*2]motion was sufficient to give rise to a presumption 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]). Defendant further 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]). Similarly, there is no merit to plaintiff’s argument that the Civil Court improperly reduced the sum due for the service billed under CPT code 99203 (see id.).

Accordingly, the order, insofar as appealed from, is affirmed.

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