April 9, 2014

Arnica Acupuncture P.C. v Interboro Ins. Co. (2014 NY Slip Op 50554(U))

Headnote

The court considered the conflicting medical expert opinions adduced by the parties as to the medical necessity of the acupuncture services sued for. Plaintiff had also acknowledged that issues of fact existed, warranting a trial on the issue of medical necessity. The main issue decided was whether the motion court properly searched the record and awarded summary judgment to plaintiff on its claim for first-party no-fault benefits. The court held that the motion court improperly granted summary judgment to the plaintiff, as there were conflicting medical expert opinions and acknowledged issues of fact warranting a trial. The court also found no abuse of discretion in the denial of defendant's motion to compel the deposition of plaintiff's treating provider on this record, as defendant failed to set forth an "articulable need" for the provider's deposition.

Reported in New York Official Reports at Arnica Acupuncture P.C. v Interboro Ins. Co. (2014 NY Slip Op 50554(U))

Arnica Acupuncture P.C. v Interboro Ins. Co. (2014 NY Slip Op 50554(U)) [*1]

Arnica Acupuncture P.C. v Interboro Ins. Co.

2014 NY Slip Op 50554(U) [43 Misc 3d 130(A)]

Decided on April 9, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570015/14.

Arnica Acupuncture P.C. a/a/o Marjorie Palmer, Plaintiff-Respondent, – –
against
Interboro Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered September 5, 2013, which denied its motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its principal for deposition, and upon searching the record, granted plaintiff summary judgment in the principal sum of $784.40.

Per Curiam.

Order (Joseph E. Capella, J.), entered September 5, 2013, insofar as appealed from, modified by vacating the grant of summary judgment to plaintiff; as so modified, order affirmed, without costs.

The motion court improperly searched the record and awarded summary judgment to plaintiff on its claim for first-party no-fault benefits, in view of the conflicting medical expert opinions adduced by the parties as to the medical necessity of the acupuncture services sued for and plaintiff’s own acknowledgment below that issues of fact exist “warranting a trial” on the issue of medical necessity.

However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition (see Ralph Med. Diagnostics, PC v Mercury Cas. Co., ____ Misc 3d ____, 2014 NY Slip Op 24054 [App Term, 1st Dept 2014]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 09, 2014