July 11, 2006

Meridian Acupuncture Care v Geico Ins. Co. (2006 NY Slip Op 05599)

Headnote

The court in the case of Meridian Acupuncture Care v Geico Ins. Co. considered the plaintiff's proposed class action to recover payments for acupuncture treatments. The main issue was whether New York Insurance Department regulation 68 required the defendant to use only licensed acupuncturists for independent medical examinations of patients who received acupuncture treatment. The court determined that the regulation did not contain such a requirement, and no license or certification was necessary for a physician conducting an independent medical examination of a patient who received acupuncture treatment. Therefore, the court held that the plaintiff's claims were based on an erroneous proposition and the complaint was properly dismissed for failure to state a cause of action. The court decided in favor of the defendant, Geico Insurance Company, and affirmed the dismissal of the complaint.

Reported in New York Official Reports at Meridian Acupuncture Care v Geico Ins. Co. (2006 NY Slip Op 05599)

Meridian Acupuncture Care v Geico Ins. Co.

2006 NY Slip Op 05599 [31 AD3d 509]

July 11, 2006

Appellate Division, Second Department

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

As corrected through Wednesday, September 20, 2006

Meridian Acupuncture Care, Appellant,
v
Geico Insurance Company, Respondent.

—[*1]

In a proposed class action by individual insureds or their assignees, inter alia, in effect, to recover payments for acupuncture treatments, the plaintiff appeals from an order of the Supreme Court, Nassau County (Warshawsky, J.), entered January 12, 2005, which, among other things, granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs.

The Supreme Court properly dismissed the complaint for failure to state a cause of action (see CPLR 3211 [a] [7]). The plaintiff’s claims are based on the erroneous proposition that New York Insurance Department regulation 68 (11 NYCRR part 65) requires the defendant to use only physicians licensed as acupuncturists to conduct independent medical examinations of patients who have received acupuncture treatment. The regulation contains no such requirement (see 11 NYCRR 65-1.1). Furthermore, contrary to the plaintiff’s contentions, no license or certification is required for a physician conducting an independent medical examination of a patient who has received acupuncture treatment, and such a physician is not engaged in the practice of acupuncture (see Education Law §§ 6521, 8211 [1] [a]; Savarese v Allstate Ins. Co., 287 AD2d 492 [2001]). [*2]

In light of this determination, the parties’ remaining contentions need not be reached. Schmidt, J.P., Santucci, Luciano and Rivera, JJ., concur.