Opinion
CV-003151-14
08-17-2015
Village Chiropractic a/a/o IRIZARRY, KENNY, Plaintiff, v. Geico Insurance Company, , Defendant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Attorneys for Plaintiff, 1111 Marcus Avenue, Suite LL26, Lake Success, New York 11042, 516-248-2929; Law Office of Printz & Goldstein, Attorneys for Defendants, 170 Froehlich Farm Blvd., Woodbury, New York 11042, 516-714-7274.
The following named papers numbered 1 to 2
submitted on this Motion on June 30, 2015
papers numbered
Notice of Motion and Supporting Documents1Notice of Cross Motion and Supporting Documents2
Opposition to Motion
Reply Papers to Motion
The petitioner moves for an order granting summary judgment in favor of the plaintiff, VILLAGE CHIROPRACTIC, for the recovery of No-Fault benefits for services rendered by the plaintiff to plaintiff's assignor, IRIZARRY, KENNY, in the amount of $4,057.55, upon the grounds that there are no triable issues of fact and no merit to any of the defenses raised by GEICO. The defendant, GEICO, cross-moves for summary judgment.
On 10/1/10 the plaintiff's assignor, IRIZARRY, KENNY, was involved in a motor vehicle accident and was entitled to No-Fault benefits under GEICO's policy. On 10/5/10 the plaintiff's assignor, IRIZARRY, KENNY, visited the medical offices of the plaintiff, VILLAGE CHIROPRACTIC, and began to receive treatment for injuries sustained in the motor vehicle accident on 10/1/10. The plaintiff's assignor, IRIZARRY, KENNY, received medical treatments from the plaintiff, VILLAGE CHIROPRACTIC, from 10/5/10 to 6/7/11 about twice a week. With the exception of one claim for $202.20 received by the defendant, GEICO, on 1/24/11 that was denied because its submission was past the requisite 45-day period, the defendant, GEICO, paid either in full or a reduced amount, allegedly in accordance with fee schedules, for all claims submitted between 10/5/10 and 1/7/11. On 1/4/11 the plaintiffs assignor, IRIZARRY, KENNY, appeared for three independent medical examinations as requested by the defendant, GEICO. Each examination was conducted by separate doctors; Thomas P. Nipper, M.D., a board certified orthopedic, Robert Snitkoff, D.C., a N.Y.S. licensed chiropractor, and Irina Rimel, L.Ac, a N.Y.S. licensed acupuncturist. The affirmed reports of each doctor concluded that the plaintiff's assignor, IRIZARRY, KENNY, no longer required any medical attention from injuries sustained in the motor vehicle accident on 10/1/10. The defendant, GEICO, notified all known providers and ceased all benefits on 1/7/11 due to lack of medical necessity. The plaintiffs assignor, IRIZARRY, KENNY, continued to receive treatment from the plaintiff, VILLAGE CHIROPRACTIC, until 6/7/11 and all claims submitted by the plaintiff, VILLAGE CHIROPRACTIC, to the defendant, GEICO, were denied due to lack of medical necessity and for not being in accordance with fee schedules.
Summary judgment should only be granted when there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. Failure to make such prima facie showing requires denial of motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce admissible evidentiary proof that establishes the existence of material issues of fact, which necessitates a trial (see Zuckerman v. New York, 49 NY2d 557 [1980]). The issues at hand in this case have been separated and ruled on separately.
On 1/24/11 the defendant, GEICO, received a claim in the amount of $202.20 from the plaintiff, VILLAGE CHIROPRACTIC, for services rendered to the plaintiff's assignor, IRIZARRY, KENNY, on 10/26/10. NY Insurance law states that no claim should be submitted later than 45 days after the date services are rendered (see 11 NYCRR 65-1.1). Plaintiff, VILLAGE CHIROPRACTIC, failed to comply with the No-Fault regulations and summary judgment is denied with respect to the claim of $202.20. (see NY Arthroscopy & Sports Medicine PLLC v. Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 836 N.Y.S.2d 753 [App Term, 1st Dep't 2007]).
On 1/4/11 plaintiff's assignor, IRIZARRY, KENNY, appeared for three independent medical examinations as requested by the defendant, GEICO. Each doctor concluded and affirmed that the plaintiff's assignor, IRIZARRY, KENNY, needed no further medical attention for the injuries sustained in the motor vehicle accident on 10/1/10. On 1/7/11 the defendant, GEICO, ceased all No-Fault benefits and subsequent claims forms were denied. The defendant, GEICO, properly cut off all payments based on the I.M.E. reports establishing lack of medical necessity. It was then incumbent upon the plaintiff to refute the I.M.E. reports conclusion in his affidavit. The defendant is mistaken when they alleged, "an affidavit or affirmation of a party who is a principal of an action must be disregarded". An affidavit would be sufficient if the owner Frederick Giovanelli, D.C., commented on the issue of medical necessity. However, a review of the affidavit of Frederick Giovanelli, D.C. does not refute the defendants, GEICO, medical examiners' reports. Defendant, GEICO, established prima facie case of lack of medical necessity based on I.M.E. that remain unanswered by plaintiff, VILLAGE CHIROPACTIC. Partial summary judgment is, therefore, awarded to the defendant, GEICO ( see MIA Acupuncture, P.C. V. PRAETORIAN Ins. Co., 35 Misc 3d 69, 946 N.Y.S.2d 395 [App. Term, 2nd, 11th and 13th Jud. Dists. 2011]).
From 10/29/10 to 1/7/11 the defendant, GEICO, received multiple claims forms from the plaintiff, VILLAGE CHIROPRACTIC, five of which were reduced and then paid based on applicable fee schedule'. An affidavit from defendants, GEICO, claims examiner, Greer Carty, demonstrates that these claims were reduced based on applicable fee schedule', however, this alone is not sufficient to establish defendants claim that "The billed amount is over the allowable charge pursuant to the NY Fee Schedule and pursuant to article 51 section 5108," as set forth in Geico's denial (see MIA Acupuncture, P.C. v. PRAETORIAN Ins. Co., supra,). Plaintiff's complaint states that the billed amounts were within applicable fee schedules under Workers' Compensation Law and that the reason for denial is without merit. The court finds issues of fact requiring trial on the claim regarding fee schedules.
The plaintiff's motion for summary judgment and the defendants cross motion for summary judgment are decided as follows; all claims set forth by the plaintiff are dismissed with prejudice except the five claims that were reduced by the defendant, GEICO, on the basis of applicable fee schedule because issues of fact exist requiring a trial.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:August 17, 2015
cc:Abram, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP
Law Office of Printz & Goldstein
SF/mp