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Flushing Traditional Acupuncture, P.C. v. Geico Ins. Co.

Supreme Court of New York, Second Department

September 13, 2013

Flushing Traditional Acupuncture, P.C. as Assignee of VYACHESLAV OVRUTSKY, Appellant,
v.
Geico Ins. Co., Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered June 8, 2011. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 for an "initial evaluation, " which was billed under code 99202, is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's argument on appeal, the affidavit of defendant's claims division employee established that defendant had properly used the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services that were billed under codes 97813 and 97814 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc.3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services. However, as defendant failed to address an "initial evaluation, " which had been billed under code 99202, defendant should not have been awarded summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 that was billed under that code.

However, plaintiff was not entitled to summary judgment on that claim, as the affidavit submitted in support of plaintiff's motion failed to establish that the claim form in question had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc.3d 128 [A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 A.D.3d 1168 [2010]).

Accordingly, the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 for an "initial evaluation, " which was billed under code 99202, is denied.

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


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