Okslen Acupuncture P.C. v Travco Ins. Co. (2014 NY Slip Op 51209(U))

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered August 16, 2011, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered August 16, 2011, affirmed, with $10 costs.

This action seeks recovery of assigned first-party no-fault benefits arising from acupuncture services provided to plaintiff’s assignor by a licensed acupuncturist. The affidavits submitted by defendant in support of its motion for summary judgment established prima facie that defendant timely and properly denied plaintiff’s no-fault claim to the extent plaintiff sought reimbursement in an amount greater than that authorized by the workers’ compensation fee schedule applicable to physicians who render acupuncture services (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Gen. Ins. Co., 16 Misc 3d 23 [2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the claim denial or the calculation of the fee. With respect to the latter, the affirmation submitted by plaintiff’s counsel did not address the nature of the acupuncture services rendered to plaintiff’s assignor, much less demonstrate that those services were not “similar” to acupuncture services generally provided by physicians, so as to exempt plaintiff from the reach of the physicians’ workers’ compensation fee schedule (see 11 NYCRR 68.5[b]). Accordingly, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule – was properly granted.