April 27, 2017

2 & 9 Acupuncture, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50599(U))

Headnote

The main issue in this case was whether the defendant had properly denied payment for services billed under CPT codes 97026 and 97016 in accordance with the workers' compensation fee schedule. The court considered the motion for summary judgment filed by the defendant, which argued that it had paid the plaintiff for the services at issue in accordance with the fee schedule. The holding of the court was that the defendant failed to demonstrate, prima facie, that it had properly denied payment for the unpaid portions of the bills for services billed under the CPT codes 97026 and 97016 in accordance with the fee schedule. Therefore, the amended order granting the defendant's motion in its entirety was reversed, and the branches of the defendant's motion seeking summary judgment dismissing the complaint were denied.

Reported in New York Official Reports at 2 & 9 Acupuncture, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50599(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

2 & 9 Acupuncture, P.C., as Assignee of Diana Golsaz, Appellant,
against
21st Century Advantage Insurance Company, Respondent.

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Law Office of Bryan M. Rothenberg (Kenneth F. Popper, Esq.), for respondent.

Appeal from an amended order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 20, 2016. The amended order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016.

ORDERED that, on the court’s own motion, the notice of appeal from an order dated December 23, 2015 is deemed a premature notice of appeal from the amended order dated January 20, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the amended order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. In an amended order dated January 20, 2016, the District Court granted defendant’s motion in its entirety. On appeal, plaintiff argues that the District Court should have denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016.

Upon a review of the record, we find that defendant failed to demonstrate, prima facie, that it had properly denied payment for the unpaid portions of the bills for services billed under [*2]CPT codes 97026 and 97016 in accordance with the workers’ compensation fee schedule (see Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the amended order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: April 27, 2017