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Z.A. Acupuncture, P.C. As Assignee of Mark Khananyev v. Geico Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


October 11, 2011

Z.A. ACUPUNCTURE, P.C. AS ASSIGNEE OF MARK KHANANYEV,
RESPONDENT,
v.
GEICO INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 9, 2009.

Z.A. Acupuncture, P.C. v Geico Ins. Co.

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2011

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order, insofar as appealed from, granted the branches of plaintiff's motion seeking summary judgment as to claims for services rendered between November 17, 2005 and January 19, 2006, and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff's motion seeking summary judgment as to claims for services rendered between November 17, 2005 and January 19, 2006 are denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant alleged that it had properly reimbursed plaintiff for the acupuncture services it had rendered between November 17, 2005 and January 19, 2006, by using the workers' compensation fee schedule applicable to chiropractors who render the same services billed for herein, and that, based upon an independent medical examination, it had denied reimbursement for the claims for services rendered between January 23, 2006 and March 9, 2006 due to a lack of medical necessity. By order entered July 9, 2009, insofar as appealed from, the Civil Court granted the branches of plaintiff's motion as to the claims for services rendered between November 17, 2005 and January 19, 2006, because defendant did not submit the workers' compensation fee schedule to the court, and denied defendant's cross motion in its entirety, finding that there was a triable issue of fact as to the medical necessity of the services rendered between January 23, 2006 and March 9, 2006.

On appeal, defendant argues that its cross motion for summary judgment dismissing the complaint should have been granted. We note, at the outset, that plaintiff admitted in its motion for summary judgment that defendant had issued timely partial payments and denial of claim forms. Since plaintiff failed to demonstrate that the denials were conclusory, vague or without merit as a matter of law, plaintiff's motion for summary judgment should have been denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

We find that the workers' compensation fee schedule, which is mandated by law (see Workers' Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is "of sufficient authenticity and reliability that it may be given judicial notice" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services rendered between November 17, 2005 and January 19, 2006 in accordance with the Official New York Workers' Compensation Chiropractic Fee Schedule and that it had issued partial denials on that ground (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is noted that defendant's submissions also demonstrate that services billed under former fee schedule treatment code 97780, which at the time the services were rendered should have been billed under the new fee schedule treatment code, 97810, were properly re-coded accordingly. Consequently, the branches of defendant's cross motion seeking summary judgment dismissing the complaint as to these claims are granted.

The claims for services rendered between January 23, 2006 and March 9, 2006, were denied on the ground of lack of medical necessity. In support of its cross motion, defendant annexed a report written by the acupuncturist who had performed an independent medical examination (IME), as well as the acupuncturist's affidavit attesting to the truth of the report, which established, prima facie, a lack of medical necessity for any services rendered after the IME took place, including these services. Contrary to plaintiff's assertion on appeal, plaintiff did not submit opposition to defendant's cross motion, nor was there any admissible evidence in the record establishing the medical necessity of the services rendered in order to raise an issue of fact (see CPLR 2219 [a]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branches of defendant's cross motion seeking summary judgment dismissing the complaint as to the claims for these services are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In light of the foregoing, the order, insofar as appealed from, is reversed, the branches of plaintiff's motion seeking summary judgment as to claims for services rendered between November 17, 2005 and January 19, 2006 are denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

Decision Date: October 11, 2011

20111011

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