Opinion
No. 2010–1971 KC.
2012-05-14
EASTERN STAR ACUPUNCTURE, P.C., as Assignee of Jesus Mena, Respondent, v. GEICO INSURANCE CO., Appellant.
Present: WESTON, J.P., PESCE and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied its cross motion for summary judgment dismissing the complaint.
In support of its cross motion, defendant submitted affidavits from its claims division employees which sufficiently established that the claim denial forms had been timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). The affidavits further established that defendant had properly used the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services underlying the second through fifth causes of action ( see Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc.3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009] ). As it is undisputed that defendant, prior to the commencement of this action, had paid plaintiff the full amount to which plaintiff was entitled for these causes of action, the branches of defendant's cross motion seeking summary judgment dismissing these causes of action should have been granted.
Furthermore, defendant denied the bill underlying plaintiff's first cause of action based upon a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer's determination that there was a lack of medical necessity for the services provided ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v. American Tr. Ins. Co., 18 Misc.3d 128[A], 2007 N.Y. Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., 16 Misc.3d 131[A], 2007 N.Y. Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007] ). In opposition to the branch of the cross motion seeking to dismiss this cause of action, plaintiff submitted an affidavit from its licensed acupuncturist which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report ( see Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 136[A], 2009 N.Y. Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ). Consequently, the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action should also have been granted ( see A. Khodadadi Radiology, P.C., 16 Misc.3d 131[A], 2007 N.Y. Slip Op 51342[U] ).
Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.