Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered December 22, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 properly used the workers’ compensation fee schedules to reimburse plaintiff for the acupuncture services which plaintiff had rendered through September 23, 2010, and that it had timely denied reimbursement for the remaining services at issue, provided from September 30, 2010 through October 8, 2010, due to a lack of medical necessity, based upon an independent medical examination (IME). The Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, we find that the affidavit of defendant’s litigation examiner, and the exhibits annexed in support of defendant’s motion, established that defendant had fully paid plaintiff in accordance with the workers’ compensation fee schedules for the services provided from July 9, 2010 through September 23, 2010 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Moreover, the sworn report of defendant’s expert established, prima facie, a lack of medical necessity for the services provided from September 30, 2010 through October 8, 2010, for which defendant had timely denied reimbursement based on an IME.

Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion with respect to either of the proffered defenses. Plaintiff’s remaining arguments are either lacking in merit or are improperly raised for the first time on appeal.

Accordingly, the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.