|Gaba Med., P.C. v Progressive Specialty Ins. Co.|
|2012 NY Slip Op 51448(U) [36 Misc 3d 139(A)]|
|Decided on July 25, 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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Queens County (William
A. Viscovich, J.), entered September 8, 2010. The order, insofar as appealed from as limited by
the brief, denied plaintiff's motion for summary judgment.
ORDERED that the order, insofar as appealed from, is reversed, without costs, plaintiff's motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied its motion for summary judgment. The court further found that the issues remaining for trial were "whether defendant properly denied and reduced plaintiff's claims in accordance to [sic] the fee schedule and whether defendant's denial, without having sought any additional verification regarding the amount of time spent with the patient, was proper according to the regulations."
The record reflects that plaintiff submitted a claim for six tests utilizing CPT code 97799 and that defendant, upon receiving the claim, unilaterally determined that the appropriate CPT code was 97750. Since CPT code 97750 is a "time based procedure code," and since defendant [*2]did not have sufficient documentation demonstrating how long it took plaintiff to perform the billed-for services, defendant concluded that it would only pay for one unit of time, i.e., 15 minutes.
We do not pass upon whether defendant may unilaterally determine that plaintiff's services should be compensated utilizing CPT code 97750 instead of code 97799, since even if defendant were permitted to unilaterally apply a code different from the one applied by plaintiff, defendant's opposition to plaintiff's motion was nevertheless insufficient to establish a triable issue of fact. Defendant's basis for paying only part of the claim, utilizing CPT code 97750, was that in the absence of being notified by plaintiff of the amount of time it had actually taken for the services to be rendered, defendant arbitrarily opted to pay for the minimum amount of time designated therefor, i.e., only one unit of time. Since this determination by defendant is without any factual basis, as defendant never requested verification from plaintiff seeking information regarding the amount of time it had taken plaintiff to perform the services billed for, such a reduction has not been shown to be warranted (see A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In light of the foregoing, defendant did not raise a triable issue of fact in opposition to plaintiff's motion.
As defendant has not challenged the Civil Court's finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff's motion for summary judgment upon the unpaid portion of its claim is granted. Accordingly, the order, insofar as appealed from, is reversed, plaintiff's motion for summary judgment is granted and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012