Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 24, 2009.
Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co.
Decided on August 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and RIOS, JJ
The judgment, entered pursuant to an order of the same court 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, the Civil Court granted defendant's motion for summary judgment and denied plaintiff's cross motion for summary judgment. Plaintiff appeals from a judgment which was subsequently entered dismissing the complaint.
Contrary to plaintiff's contentions, defendant's moving papers
established that the denial of claim forms had been timely mailed (see
St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d
1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins.,
17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the claims which were
denied based upon the workers' compensation fee schedule, defendant demonstrated that it
had fully paid plaintiff the amount to which plaintiff was entitled in accordance with the workers'
compensation fee schedule for acupuncture services rendered by a chiropractor (see Great Wall Acupuncture,
P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). With respect to the claims which
were denied based upon an independent medical examination (IME) performed by defendant's acupuncturist, the
sworn IME report established a lack of medical necessity for the services, and the affidavit of plaintiff's acupuncturist
did not meaningfully refer to, let alone rebut, the conclusions of defendant's acupuncturist (see 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];
see also 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]). In light of the foregoing, defendant's motion for summary judgment dismissing the
complaint was properly granted and plaintiff's cross motion for summary judgment was properly denied.
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August ...