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W.H.O. Acupuncture, P.C. As Assignee of Joseph Melinda v. National Continental Ins. Co

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


December 23, 2011

W.H.O. ACUPUNCTURE, P.C. AS ASSIGNEE OF JOSEPH MELINDA,
APPELLANT,
v.
NATIONAL CONTINENTAL INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 20, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]).

W.H.O. Acupuncture, P.C. v National Cont. Ins. Co.

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The judgment, entered pursuant to the April 20, 2010 order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

With respect to plaintiff's claims for acupuncture services rendered from November 19, 2007 through February 21, 2008, defendant demonstrated that it had fully paid plaintiff for the services billed for under codes 97810 and 97811, by using the workers' compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In response, plaintiff failed to raise a triable issue of fact (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branch of defendant's motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Defendant denied payment of the claims for acupuncture services rendered from February 27, 2008 through May 1, 2008 based on the sworn independent medical examination report of Dr. Thomas, which established a prima facie showing of lack of medical necessity for these services. On appeal, plaintiff contends that there is an issue of fact regarding the lack of medical necessity. However, as plaintiff raises this issue for the first time on appeal, it is not properly before this court (see Gorenstein v Debralaurie Realty Co., 280 AD2d 642 [2001]).

Accordingly, the judgment is affirmed.

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

Decision Date: December 23, 2011

20111223

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