[*1]
Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co.
2017 NY Slip Op 51891(U)
Decided on December 22, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1563 K C

Z. M. S. & Y Acupuncture, P.C., as Assignee of Stratton, Brenda, Respondent,

against

GEICO General Insurance Company, Appellant.


The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 17, 2015. The order, insofar as appealed from, denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of an order of the Civil Court as denied the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.

Defendant demonstrated that it had fully paid plaintiff for the services at issue 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 Dept, 2d, 11th & 13th Jud Dists 2009]). Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers' compensation fee schedule is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff [*2]Apr. 1, 2013]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]). As plaintiff failed to rebut defendant's showing, the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017