Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion and

Affidavits /Affirmations annexed Motion #1, NYSCEF Doc#: 6-13

Cross motion & Answering Affirmations Motion #2, NYSCEF Doc#: 15-23

Reply Affidavits/ Affirmations NYSCEF Doc#: 24-29

Memoranda of Law

Other

Upon the foregoing cited papers, the decision on Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment is as follows:

Plaintiff, Jasoda Dhupan (hereafter referred to as "Plaintiff"), as assignee of Latoya Edwards (hereafter referred to as "Assignor"), commenced this action against the defendant, American Transit Ins. Co. (hereafter referred to as "Defendant"), to recover assigned first-party automobile insurance (hereafter referred to as "No-Fault") benefits for medical treatment provided to the Assignor pursuant to a No-Fault insurance policy issued by the Defendant.

The Defendant moves for an order pursuant to CPLR §3212 granting partial summary judgment for a reduction of the amount of damages demanded in the summons and complaint of $1,153.76 on the grounds that the fee charged is in excess of the N.Y.S. Worker's Compensation Fee Schedule (hereafter referred to as the "Fee Schedule") amount of $267.82. The Plaintiff opposes the motion on the grounds, inter alia, the Defendant failed to establish its prima facie burden of proof for the motion.

This motion was argued together with eight other cases involving the same parties and issues, N.Y.C. Civil Court Index Numbers: CV-733686-24/RI; CV-733688-24/RI; CV-733689-24/RI; CV-733690-24/RI; CV-733691-24/RI; CV-733692-24/RI; CV-733693-24/RI; and CV-733699-24/RI. The following is the decision of the Court relating only to CV-733696-24/RI.

1. The Defendant's prima facie burden of proof

"A party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief (citing Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853). Only if that burden is met does the burden shift to the party opposing the summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact." (Reyes v Arco Wentworth Management Corporation, 83 AD3d 47 [2nd Dept., 2011]).

The N.Y.S. Insurance Law, the N.Y.S. No-Fault regulations, as well as the prior decisions of the courts, required the Defendant to timely file a denial of claim form within 30 days after receiving the claim (bill) or, if a verification request was made, after the receipt of plaintiff's response to the defendant's verification request. If the denial is not timely filed, then the defense will be precluded. The N.Y.S. Court of Appeals had directed that the only exception to the preclusion was if the defense was based upon insurance coverage. (Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 [1997]; citing, Insurance Law §5106[a], and 11 NYCRR 65-3.8[a][1].)

In this instance, the Defendant is only disputing the amount of the fee charged and is not denying the claim. The Defendant did not offer any evidence regarding the bills at issue, a copy of the bills, nor any evidence to prove that it paid the Claimant pursuant to the Fee Schedule. Therefore, the Defendant did not produce any admissible evidence of a timely denial of the claim.

Rather, the Defendant argues that "a fee schedule defense is no longer a precludable defense, nor one that needs be preserved in a timely denial"^[FN1] (citing, Saddle Brook Surgicenter, LLC v. Allstate Ins. Co., 48 Misc 3d 336 [Civ. Ct., Bronx Cty., 2015]; Z.M.S. & Y Acupuncture, P.C. v. Geico Gen. Ins. Co., 58 Misc 3d 143(A) [App. Term, 2nd Dept., 2017]; Oleg's Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc 3d 151(A) [App. Term, 2d Dept., 2018]).

The argument reports that the No-Fault regulations were changed in 2013 when Section 65-3.8 was amended to add the following:

"(g) (1) Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

(i) When the claimed medical services were not provided to an injured party; or

(ii) for those claimed medical services that exceed the charges permissible pursuant to Insurance Law §5108(a), a New York fee schedule dispute." (11 NYCRR §65-3.8[g][1][ii])

It is alleged that the change in the No-Fault regulation makes any objection to the claim based upon any billing in excess of the Fee Schedule a "non-precludable" defense. Consequently, it does not matter if the payment of the bill or the denial of the bill was issued timely, the defense cannot be precluded.

The Plaintiff's opposition alleges the Defendant failed to meet its prima facie burden of proof and, therefore, the partial summary judgment should be denied. The Plaintiff relies upon [*2]the Court of Appeals ruling in Presbyterian Hosp. in City of NY v. Maryland Cas. Co. (90 NY2d 274 [1997]), that an insurer is required to pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim.

" . . . An insurer may be precluded from interposing a statutory exclusion defense for failure to deny a claim within 30 days as required by Insurance Law §5106(a) and 11 NYCRR §65.15(g)(e)."^[FN2] (Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d at 282).

The Court noted that in Zappone v. Home Ins. Co., 55 NY2d 131 (1982) the Court distinguished "an insurer's denial of liability based upon a policy exclusion and a breach of a policy condition based upon a lack of coverage" from a defense that is not subject to preclusion in the lack of coverage situation where "there was never any insurance in effect" (Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 [1997]; citing, Zappone v. Home Ins. Co, 55 NY2d 131 [1982]).

In the Presbyterian Hosp. case the Court of Appeals went further to say:

"We are persuaded that, until and unless the legislature clearly declares otherwise, the preclusion analysis that we have employed and in this other branch of the insurance law should also be discreetly applicable with respect to the 30-day appointment in the no fault context of the instant case." Presbyterian Hosp., supra, at P. 283.

The Court of Appeals reinforced this precedent in its decision of Vivianne Etienne Medical Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), issued after the N.Y.S. Insurance Commissioner's modification of 11 NYCRR §65-3.8 to include (g)(1)(ii), where the Court stated:

"Where an insurer fails to pay or deny a claim within the requested 30-days under the statute and regulations following its receipt of the proof of claim, the insurer is subject to 'substantial consequences,' namely, preclusion 'from asserting a defense against payment of the claim' (citing, Fair Price Medical Supply Corp. v. Travelers Indem. Co., 10 NY3d 556 [2008]). The only exception to preclusion recognized with this court arises where an insurer raises lack of coverage as a defense." Vivianne Etienne Medical Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015].)

Neither the legislature, nor the Court of Appeals have changed the interpretation of the No-Fault insurance law subjecting the insurance carrier to preclusion of their defense if they fail to prove the timely denial of the claim. In the Vivianne Etienne decision the NY Court of Appeals stated:

"This court has recognized that preclusion may require an insurer to pay a no fault claim it might not have had to honor if it had timely denied the claim (citing, Presbyterian [*3]Hosp., 90 NY2d at 285, supra). Nonetheless, we emphasized that the great convenience of 'prompt uncontested, first party insurance benefits' is 'part of the price paid to eliminate common law contested lawsuits'" (Vivianne Etienne Medical Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), citing Fair Price Medical Supply Corp. v. Travelers Indem. Co., 10 NY3d 556 [2008]).

More recently the Appellate Term has opined on the preclusion issue in two cases. The Court in Z.M.S. & Y Acupuncture, P.C. v Geico, 58 Misc 3d 143(A), 2017 NY Slip Op 51891(U) (App. Term, 2d Dept., 2017) said a defense that the amount sought to be recovered exceeded the amount permitted by the workers compensation fee schedule is not subject to preclusion (citing 11 NYCRR 65-3.8[g], [eff. Apr. 1, 2013]; Surgicare Surgical Assoc. v. National Interstate Ins. Co., 50 Misc 3d 85, 25 N.Y.S.3d 521 [App. Term, 1st Dept., 2015]). However, the Court found the plaintiff in that matter failed to rebut the defendant's showing that the amount charged was not consistent with the fee schedule. Therefore, the insurance company's motion was granted, and the medical provider's claim was dismissed (Z.M.S. & Y Acupuncture, P.C. v Geico, 58 Misc 3d 143(A), 2017 NY Slip Op 51891(U) [App. Term, 2d Dept., 2017]).

In the second case, Oleg's Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc 3d 151(A), (App. Term, 2d Dept., 2018) the Court ruled "the defendant was not required to establish that it had timely denied the claims in order to preserve its Fee Schedule defense, as the services at issue had been provided in [2014]" (after the modification of the regulation) (Oleg's Acupuncture, P.C., supra; citing, 11 NYCRR §65-3.8 [g][1][ii]). The court granted the insurance company's motion because the plaintiff failed to raise a triable issue of fact. The Court ruled the plaintiff submitted only an affirmation by its counsel, who did not establish personal knowledge of the facts.

In 2019, the District Court in Suffolk County denied a defendant's motion to dismiss the complaint based upon non-compliance with the fee schedule because the defendant failed to timely deny the claim. Addressing the 2013 regulation change by the N.Y.S. Insurance Commissioner, the District Court said:

"An administrative agency's rule making power is limited and may not circumvent or be contrary to the legislature's determination (See, N.Y.S. Const. Art.3, Sec 1, Nicholas v. Khan, 47 NY2d 24, 416 N.Y.S.2d 565, 389 NY2d 1086 [1979]). Such inconsistent regulations are 'preempted' by statutory dictate. (See Boreali v Axelrod, 71 NY2d 1, 523 N.Y.S.2d 464, 517 NY2d 1350 [1987])." (MUA Chiropractic Healthcare, PLLC v. State Farm Mutual, 66 Misc 3d 464 [Dist. Ct., Suffolk Cty., 2019]).

The MUA Chiropractic Healthcare, PLLC v. State Farm Mutual decision is consistent with the Court of Appeals ruling in Presbyterian Hosp. in City of NY v. Maryland Cas. Co. (90 NY2d 274 [1997]), that said only the legislature could determine if a defense was not precludable.

Neither the Appellate Term, nor the Appellate Division have addressed the inconsistency between the decisions of Z.M.S. & Y Acupuncture, supra, Surgicare Surgical supra., and Oleg's Acupuncture, supra compared to Presbyterian Hosp. in City of NY v. Maryland Cas. Co., supra, specifically relating to the ruling by the Court of Appeals in the latter case that it was up to the legislature to declare that the 30-day preclusion rule does not apply. A clarification of the reasoning for the change in policy would be constructive.

So, while the parties dispute the authority of the Insurance Commissioner to overrule the [*4]precedent set by the Court of Appeals, the N.Y.S. Constitution, and the Insurance Law, the Appellate Term's decisions are the appellate precedent in effect since the change in the No-Fault regulations (11 NYCRR §65-3.8[g][1][ii]).

Accordingly, this Court finds that the Defendant's failure to prove it timely denied the bills within 30 days of receipt does not preclude the Defendant from raising the defense of nonconformance with the N.Y.S. Fee schedule.

2. Is there a triable issue of fact that the fees charged were in excess of the N.Y.S. Workers Compensation Fee Schedule?

"A party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief." (Reyes v Arco Wentworth Management Corporation, 83 AD3d 47 [2nd Dept., 2011]; citing, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853.) To support its summary judgment motion, the Defendant must next establish by admissible evidence that the fees charged by the Plaintiff were billed in excess of the applicable fee schedule Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132(A) [App. Term, 2d Dept., 2009]).

The bills at issue involve services by the Plaintiff as a nurse practitioner on April 18, 2024 for a "Follow-up office visit," billed with the fee schedule treatment code 99215, "needling of muscles" billed with fee schedule treatment code 20999, and "addl. needling of muscles," billed with fee schedule treatment code 20999.59. The Plaintiff charged the office visit at rate of $203.76, each needling of muscles (20999) at the rate of $100.00, and each additional needling of muscles (20999.59) at the rate of $75.00. The Defendant alleges these charges are in excess of the Fee Schedule.

In support of its argument, the Defendant submits the affirmation of Kristen Savold, CPC, a certified professional fee coder, who states in her professional opinion that the New York Fee Schedule amount for all the services for both bills combined should be $267.82. Ms. Savold opined that the CPT code of 20999 is correct but should only be billed once per visit, not multiple times as charged here. However, Ms. Savold then alleges the CPT code 20533 should be used because she equates dry needling to trigger point injections instead of using code 20999. She also opines, "CPT Code 20533 would reasonably reflect a similar work value associated with that of dry needling of trigger points on three or more muscles." She concludes that the appropriate fee amount is $267.82.

The Court finds that this affirmation meets the requirements of CPLR §3212(b), as well as satisfying the Defendant's prima facie burden of proof. As a result, the burden of proof shifts to the Plaintiff to establish a triable issue of fact. (Reyes v Arco Wentworth Management Corporation, 83 AD3d 47 [2nd Dept., 2011]; citing, Alvarez v Prospect Hosp., 68 NY2d 320.)

The Plaintiff submits the report of Jennifer Nestoiter, a Certified Billing and Coding Specialist, who disagrees with the opinion of Ms. Savold and opines the amount billed by the Plaintiff was correct. Ms. Nestoiter disputes the Defendant's expert's opinion that the code for trigger point injections (CPT code 20533) should be used to determine the amount billed. She states dry needling is more complex than trigger point injections and therefore, not comparable. Ms. Nestoiter concludes the proper billing amount was $1,113.01.

The difference in opinions between the two expert witnesses creates an issue of fact for trial.

The Defendant's memorandum in support argues there is no issue for trial because the [*5]Appellate Term already ruled that dry needling is properly reimbursed under CPT code 20533 (Renelique v. Allstate Ins. Co., 57 Misc 3d 126(A) [App Term, 2d Dept., 2017]). However, the Defendant misrepresents the ruling in Renelique. In that decision the Court said:

"Defendant demonstrated that it had properly applied the workers compensation fee schedule to calculate the amount due for services billed under CPT code 20533, and plaintiff failed to rebut defendant's showing (citing Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A] [App. Term, 2d Dept., 2015]). Plaintiff's argument with respect to CPT code 99203 is improperly raised for the first time on appeal." (Renelique v. Allstate Ins. Co., 57 Misc 3d 126(A) [App Term, 2d Dept., 2017].)

In this instance, there is a rebuttal to the Defendant's Fee Schedule expert's opinion. The Court in Renelique did not declare the dry needling CPT code 20533 to be the correct code, but only that the Defendant had properly applied the code based upon its own expert without a contradicting opinion.

The Court finds that Renelique does not apply to these facts.

Next, the Defendant argues that there are "countless arbitration awards" addressing this issue and therefore, there is not a need for another trial. The Defendant does not cite any case law suggesting this Court is bound by the arbitration decisions. The decisions submitted by the Defendant all rule in favor of the insurance carrier, but that is the only thing they are consistent about. The arbitration decisions rely on various reasons to reduce the billed amount pursuant to the fee schedule based upon the facts in those matters. One award was based upon CPT code 20533, others used CPT code 20561. Another decision relied upon CPT code 20533 but determined the amount of the fee schedule was $131.00 (different from what Defendant's expert alleges here). In some of the cases two fee coder opinions were cited, and in others the opinion of one fee coder and a medical doctor were compared. The different arbitrators assigned different credibility to different witnesses. None of these arbitration awards are persuasive enough to preclude a trial to resolve the issues of fact in this particular case. The Court finds the weight to be given to these prior arbitration decisions may be argued by the parties at trial, but they do not negate the need for the trial.

The Defendant also argues that collateral estoppel precludes a trial of the facts in this matter. The Defendant did not show that any prior arbitration involved the same assignor, the same insurance policy, or the same accident, sufficient to justify applying the principal of collateral estoppel preclude the trial (Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]). That would be a different argument. Rather, Defendant argues the volume of prior arbitration decisions reducing the amount of the bills pursuant to the Fee Schedule demonstrates that a trial of this matter is pointless.

In analyzing the Defendant's argument, the Court notes first, that the Defendant offers only arbitration awards, and not judgments after trials. Even the decision of the N.Y.C. Civil Court, Richmond County (Hon. Michael J. Pinto), cited by the Defendant, was issued upon a motion for summary judgment in which the plaintiff failed to rebut the defendant's fee coder. That decision is distinguishable from the facts of this case and, therefore, collateral estoppel does not apply.

Second, the Defendant has not shown the parties had the full opportunity to litigate this matter in the past, arbitrations notwithstanding. The issue of the weight to be given to the [*6]opinion of the experts based upon their prior testimony is a credibility issue for the attorneys to argue at trial.

Furthermore, the arbitration decisions are generally not reviewable by the appellate courts of this State, even if mistakes of law or fact occur in the arbitration decision (In re Falzone [New York Cent. Mut Fire Inc. Co.] 15 NY3d 530 [2010]). Consequently, both parties have the right to a trial in this matter before this trial Court and to exercise their right to appeal any decision, regardless of the decisions in the prior arbitrations.

At the time of the treatment, the Fee Schedule did not have a specific billing code that applied to dry needling. Therefore, there is a dispute between the parties regarding which fee schedule code should apply. This Court finds that how the Fee Schedule is used to determine the fee to be billed is an issue to be resolved at trial.

The Plaintiff cross-moves for summary judgment based upon the Defendant's failure to timely pay the full amount of the claim. The summary judgment motion requires proof that the statutory claim forms were mailed to and received by the insurer (Vivianne Etienne Medical Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128(A) [App. Term, 2nd Dept., 2011]; citing, Insurance Law §5106[a]; Westchester Med. Ctr. v. Nationwide Mut Ins. Co., 78 AD3d 1168 [2010]; and New York Presbyt. Hosp., v Allstate Ins. Co., 31 AD3d 412 [2006]).

In this instance the affirmation of Wilma Tanglao, is sufficient to demonstrate that the bills were timely mailed to the Defendant. Based upon the procedures of the Plaintiffs they are presumed to be received, and Ms. Tanglao attests that the balance of the payment has not been received by the Plaintiff. Therefore, the Court finds the Plaintiff established its prima facie burden of proof.

Accordingly, the Defendant's motion for partial summary judgment is denied as there is an issue of fact regarding the appropriate amount of the Plaintiff's bill, based upon the calculation of the Fee Schedule to be decided at trial.

The Plaintiff's cross-motion for summary judgment is granted to the extent that the Plaintiff proved its prima facie case that the bills were mailed and received by the Defendant, and they were not timely paid.

All other issues and defenses are referred for trial.

This is the decision and order of the Court.