Opinion
No. 570896/15.
12-18-2015
EASY CARE ACUPUNCTURE, P.C., a/a/o Cheryl Browne, Plaintiff–Appellant, v. NATIONWIDE GENERAL INS. CO., Defendant–Respondent.
Order (David B. Cohen, J.), entered December 18, 2014, insofar as appealed from, modified by reinstating plaintiff's claim for first-party no-fault benefits billed under CPT code 99202; as modified, order affirmed, without costs.
The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ) plaintiff's no-fault claims billed under CPT codes 97810, 97811, 97813 and 97814 for services rendered April 9, 2009 through May 27, 2009 and June 25, 2009 through September 15, 2009, on the ground that the amounts charged were in excess of the fees set forth in the applicable worker's compensation fee schedule (see Akita Med. Acupuncture, P.C. v. Clarendon Ins. Co., 41 Misc.3d 134[A], 2013 N.Y. Slip Op 51860[U][App Term, 1st Dept 2013] ; Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc.3d 23 [App Term, 2d Dept 2009] ). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant's mailing of the denial or the calculation of the fee pertaining to these claims.
However, triable issues remain as to whether defendant properly denied plaintiff's claim for $61.43, billed under CPT code 99202 (initial evaluation), thus precluding summary judgment dismissing this claim (see Megacure Acupuncture, P.C. v. Clarendon Natl. Ins. Co., 33 Misc.3d 141[A], 2011 N.Y. Slip Op 52199[U][App Term, 2d, 11th & 13th Jud Dists 2011] ; see also VS Care Acupuncture v. State Farm Mut. Auto. Ins. Co., 46 Misc.3d 141[A], 2015 N.Y. Slip Op 50164[U][App Term, 1st Dept 2015] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.