Live In Grace Acupuncture, P.C. v. GEICO Gen. Ins. Co.

Live In Grace Acupuncture, P.C. v GEICO Gen. Ins. Co. (2020 NY Slip Op 51360(U)) [*1] Live In Grace Acupuncture, P.C. v GEICO Gen. Ins. Co. 2020 NY Slip Op 51360(U) [69 Misc 3d 142(A)] Decided on November 13, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 13, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ 2018-2090 K C Live In Grace Acupuncture, P.C., as Assignee of Noemi Oyala and Gianina Valentine, Respondent, against GEICO General Ins. Co., Appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered August 24, 2018. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff's motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff's motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala 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. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered August 24, 2018 as denied the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff's motion seeking summary judgment [*2]upon those claims with respect to assignor Noemi Oyala. The branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 was based upon the defense that it had fully paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule. The record establishes that defendant demonstrated that it had fully paid plaintiff in accordance with the workers' compensation fee schedule for the services billed under CPT codes 97813 and 97814 for acupuncture services that plaintiff had rendered after April 1, 2013. As a result, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 should have been granted (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]; Jing Luo Acupuncture, P.C. v NY City Tr.Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Oleg's Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff's motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied. ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 13, 2020