|Raz Acupuncture, P.C. v AIG Indem. Ins. Co.|
|2010 NY Slip Op 51177(U) [28 Misc 3d 127(A)]|
|Decided on July 7, 2010|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold,
J.), entered September 4, 2008. The order granted defendant's motion for summary judgment
dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that so much of defendant's motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $139.34 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, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. According to the papers submitted by defendant in support of its motion, plaintiff, a professional corporation licensed to perform acupuncture, sought reimbursement in the sum of $139.34 for an initial acupuncture visit, a claim that defendant denied in its entirety. Plaintiff further sought reimbursement for a series of acupuncture sessions for which it had billed $90 per session. Defendant paid plaintiff for the sessions at the reduced rate of $42.84 per session, which, defendant claimed, was the amount paid to medical doctors for similar services. The Civil Court granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Plaintiff did not submit its claim forms in support of its cross motion for summary judgment. In light of plaintiff's failure to submit competent evidence, plaintiff failed to establish its entitlement to summary judgment (see CPLR 3212; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Contrary to plaintiff's contention, defendant's submission of the claim forms in support of its own motion did not lay the requisite foundation for their admission as evidence pursuant to CPLR 4518, since an acknowledgment of receipt does not "concede the admissibility of the purported claim forms or the facts set forth therein" (see Midborough Acupuncture,P.C., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U]). Accordingly, the Civil [*2]Court properly denied plaintiff's cross motion for summary judgment.
The affidavit submitted by defendant sufficiently established that its denial of claim forms were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, defendant did not proffer sufficient evidence to warrant the dismissal of plaintiff's claim for the initial acupuncture visit (cf. Rogy Medical, 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]).
With respect to the remaining claim forms which are the subject of this action, defendant's claims employees established that defendant had timely paid a portion of each of the claims and that defendant had timely denied the balance allegedly due on them. This court has held, "as a matter of law, that an insurer may use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services" (Great Wall Acupuncture, P.C. v Geico Ins. Co, 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant paid plaintiff based upon the workers' compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, we decline to disturb so much of the order as granted defendant summary judgment dismissing plaintiff's complaint with respect to those claims.
We note that, despite plaintiff's allegations, plaintiff has failed to demonstrate that the New York Workers' Compensation fee schedules for acupuncture services performed by a medical doctor and by a chiropractor were not "prepare[d] and establish[ed]" by the Chair of the Workers' Compensation Board (see Workers' Compensation Law § 13; see also Insurance Department Regulations [11 NYCRR] § 68.1 [a]).
Accordingly, the order is modified by providing that so much of defendant's motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon the claim for $139.34 is denied and the order is otherwise affirmed.
Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2010