Opinion
2011-10-12
FINE HEALING ACUPUNCTURE, P.C. as Assignee of John Miller, Appellant, v. COUNTRY–WIDE INSURANCE COMPANY, Respondent.
The Law Offices of Eva Gaspari, PLLC, New York City (Eva Gaspari of counsel), for appellant.Present: PESCE, P.J., RIOS and STEINHARDT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered May 19, 2010, deemed from a judgment of the same court entered May 24, 2010 (see CPLR 5501[c] ). The judgment, entered pursuant to the May 19, 2010 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated, and defendant's cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, claiming that it had timely denied reimbursement for the acupuncture services in question based on an independent medical examination (IME) by its neurologist, who had found a lack of medical necessity for further treatment. The Civil Court, finding that plaintiff had failed to raise a triable issue of fact, denied plaintiff's motion and granted defendant's cross motion. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( see CPLR 5501[c] ).
Although plaintiff contends that defendant's neurologist was not competent to give an opinion on the medical necessity of the acupuncture services rendered, we note that the Insurance Department has stated in an opinion letter, to which we must accord great deference ( see LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 12 N.Y.3d 217, 879 N.Y.S.2d 14, 906 N.E.2d 1046 [2009]; see also Allstate Social Work & Psychological Servs., PLLC v. Utica Mut. Ins. Co., 30 Misc.3d 90, 918 N.Y.S.2d 821 [App. Term, 2d, 11th & 13th Jud. Dists. 2011] ), that there is no requirement that a claim denial be based upon a medical examination conducted by a health provider of the same specialty area as the treating provider ( see 2004 Ops. Ins. Dept. No. 04–03–10). As there was a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the acupuncture services provided to plaintiff's assignor ( see Delta Diagnostic Radiology, P.C. v. Integon Natl. Ins. Co., 24 Misc.3d 136(A), 2009 N.Y. Slip Op. 51502(U), 2009 WL 2032922 [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), 2007 WL 4564121 [App. Term, 2d & 11th Jud. Dists. 2007] ), the burden shifted to plaintiff to rebut defendant's prima facie showing ( see Alur Med. Supply, Inc. v. Clarendon Natl. Ins. Co., 27 Misc.3d 132(A), 2010 N.Y. Slip Op. 50700(U), 2010 WL 1629934 [App. Term, 2d, 11th & 13th Jud. Dists. 2010]; Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 136(A), 2009 N.Y. Slip Op. 51495(U), 2009 WL 2032906 [App. Term, 2d, 11th & 13th Jud. Dists. 2009] ).
Upon a review of the record, we find that the affidavit of plaintiff's treating acupuncturist was sufficient to raise a triable issue of fact as to whether the acupuncture services rendered to plaintiff's assignor were medically necessary ( see Quality Psychological Servs., P.C. v. Mercury Ins. Group, 27 Misc.3d 129(A), 2010 N.Y. Slip Op. 50601(U), 2010 WL 1424277 [App. Term, 2d, 11th & 13th Dists. 2010] ). Accordingly, the judgment dismissing plaintiff's complaint is reversed, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated, and defendant's cross motion for summary judgment is denied.