| Easy Care Acupuncture, P.C. v A. Cent. Ins. Co. |
| 2015 NY Slip Op 50973(U) [48 Misc 3d 129(A)] |
| Decided on June 30, 2015 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered March 4, 2013, which granted defendant's motion for summary judgment dismissing the complaint.
Per Curiam.
Order (James E. d'Auguste, J.), entered March 4, 2013, reversed, with $10 costs, motion denied and complaint reinstated.
Defendant failed to satisfy its prima facie burden of establishing its entitlement to summary judgment, since the peer review report and accompanying affidavit by the peer reviewer failed to conclusively establish that the acupuncture services giving rise to plaintiff's claims lacked medical necessity. That the assignor may have subjectively reported during the course of the peer review examination that he "feels worse" after two months of treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate all triable issues regarding the medical necessity of continued acupuncture treatment, especially in view of the peer reviewer's own positive findings (see Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 46 Misc 3d 126[A], 2014 NY Slip Op 51766[U][App Term, 1st Dept]). In addition, the peer reviewer's statement that "with respect to the [assignor's] right shoulder complaints, further comment outside my area of expertise is deferred to the appropriate specialist," was hardly sufficient to permit a summary determination as to the medical necessity of continued treatment related to this injury.
Nor did defendant proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule (see Compas Medical, P.C. v. GEICO Ins. Co., 46 Misc 3d 133[A], 2014 NY Slip Op 51857[U] [App Term, 2d, 11th & 13th Jud Dists [2014]; see also Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13 [2009]).
Given that defendant failed to meet its initial burden of establishing as a matter of law its defenses, its motion should have been denied, even though plaintiff's opposition papers would have been insufficient to raise any triable issue (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [*2][1986]).