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Gentle Care Acupuncture, P.C. As Assignee of Rita Levitan v. Craigg Total Health Family Chiropractic Care

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 28, 2012

GENTLE CARE ACUPUNCTURE, P.C. AS ASSIGNEE OF RITA LEVITAN,
RESPONDENT, -AND-
v.
CRAIGG TOTAL HEALTH FAMILY CHIROPRACTIC CARE, P.C. AS ASSIGNEE OF RITA LEVITAN,
PLAINTIFF, -- GEICO INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (In-grid Joseph, J.), entered July 9, 2010.

Gentle Care Acupuncture, P.C. v Craigg Total Health Family Chiropractic Care, P.C.

Decided on June 28, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., PESCE and ALIOTTA, JJ

The order, insofar as appealed from as limited by the brief, denied the branches of defendant's cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.'s claims for services rendered from June 7, 2007 through October 3, 2007.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.'s claims for services rendered from June 7, 2007 through October 3, 2007 is granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of its cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.'s claims for services rendered from June 7, 2007 through October 3, 2007.

In support of its cross motion, defendant submitted affidavits by employees of its claims division, which were sufficient to establish that defendant had timely denied the claims of plaintiff Gentle Care Acupuncture, P.C. (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) for dates of service June 7, 2007 through September 19, 2007, on the ground that the claims exceeded the amount permitted by the workers' compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with 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]). Since defendant fully paid the amount to which plaintiff Gentle Care Acupuncture, P.C. was entitled for acupuncture services rendered from June 7, 2007 through September 19, 2007, the branches of defendant's cross motion for summary judgment seeking to dismiss plaintiff Gentle Care Acupuncture, P.C.'s claims for these dates of service should have been granted.

Defendant also timely denied plaintiff Gentle Care Acupuncture, P.C.'s claims for acupuncture services rendered from September 24, 2007 through October 3, 2007, based upon an independent medical examination (IME) performed by defendant's acupuncturist, who found a lack of medical necessity for further acupuncture services. The IME report, which was accompanied by the examining acupuncturist's affidavit, concluded that the assignor's injuries had resolved and that there was no need for further acupuncture treatment. Although plaintiff submitted, in opposition to the cross motion, an "Affidavit of Medical Necessity" of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Gentle Care Acupuncture, P.C. v Geico Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52226[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branches of defendant's cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.'s claims for services rendered from September 24, 2007 through October 3, 2007 should have been granted (see 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]).

Weston, J.P., Pesce and Aliotta, JJ., concur. Decision Date: June 28, 2012

20120628

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