Case Law

Defendant failed to establish with admissible evidence that Florida law applies and, thus, that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies, defendant relied upon a payment log to demonstrate that the policy limits had been exhausted; however, the affidavits submitted by defendant failed to establish that the annexed payment log constituted admissible evidence of exhaustion (see CPLR 4518; People v Kennedy, 68 NY2d 569, 579-580, 503 N.E.2d 501, 510 N.Y.S.2d 853 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331, 890 N.Y.S.2d 230 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531, 654 N.Y.S.2d 638 [1997]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the third, fifth and seventh causes of action.

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Trial court properly denied plaintiff no-fault insurers' motion for summary judgment on their claim seeking a declaration that licensed acupuncturists were entitled to payment of no-fault insurance benefits only as set forth in the workers' compensation fee schedule for chiropractors, Insurance Law § 5108(a) and 11 NYCRR 68.6(b), as plaintiffs did not proffer admissible evidence sufficient to make a prima facie showing of entitlement to judgment as a matter of law where they relied on a 2004 informal opinion letter of the former Insurance Department, which did not resolve the issue, and they did not proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule; [2]-Further, defendants raised an issue of fact as to whether the physician fee schedule should apply.

Plaintiffs did not proffer admissible evidence sufficient to make a prima facie showing of entitlement to judgment on the issue as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316 [1985]). Plaintiffs rely on a 2004 informal opinion letter of the former Insurance Department, but that letter did not resolve the issue. It allows insurers to pay "the rates established for doctors and chiropractors," instead of a higher "prevailing fee in the geographic location of the provider," so long as there is a review "for consistency with [the] charges permissible for similar procedures" under either fee schedule (Ops Gen Counsel NY Ins Dept No. 04-10-03, 2004 NY Insurance GC Opinions LEXIS 242; see 11 NYCRR 68.5 [b]). The opinion letter "did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware" that "the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians" (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23, 28, 842 NYS2d 131 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 174, 100 NYS3d 612, 124 NE3d 162 [2019] [requiring judicial deference to an "agency's rational interpretation of its own regulations"]). While courts have held that "an insurer may use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist [**73]  is entitled to receive" (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24, 893 NYS2d 420 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 981 NYS2d 633, 2013 NY Slip Op 51860[U] [App Term, 1st Dept 2013]), such holdings do not foreclose the use of the physician fee schedule in all cases (see e.g. Okslen Acupuncture P.C. v Travco Ins. Co., 44 Misc 3d 135[A], 999 NYS2d 797, 2014 NY Slip Op 51209[U], *1 [App Term, 1st Dept 2014]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 957 NYS2d 638, 2010 NY Slip Op 51177[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

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Plaintiff's contention that defendant is not entitled to summary judgment upon the third cause of action will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963, 931 N.Y.S.2d 658 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579, 788 N.Y.S.2d 132 [2004]).

Plaintiff argues that defendant was not entitled to summary judgment upon the fourth and fifth causes of action because the follow-up EUO scheduling letters were sent more than 10 calendar days after plaintiff had failed to appear for separately scheduled EUOs with respect to the claims underlying the fourth and fifth causes of action. The record establishes that, with respect to the claim underlying the fourth cause of action, after plaintiff failed to appear for the first scheduled EUO, defendant timely mailed a second EUO scheduling letter (see 11 NYCRR 65-3.6 [b]).

However, with respect to the claim underlying the fifth cause of action, the record establishes that, after plaintiff failed to appear for the first scheduled EUO, defendant's follow-up scheduling letter for that EUO was mailed more than 10 days later. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.6 [b]) and the branch of defendant's cross motion seeking summary judgment dismissing the fifth cause of action due to plaintiff's failure to appear [*4]  for EUOs should have been denied. However, the branch of plaintiff's motion seeking summary judgment upon this cause of action was properly denied, as the proof submitted in support of plaintiff's motion failed to establish either that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 14 N.Y.S.3d 283, 35 N.E.3d 451 [2015]), or that defendant had issued a timely denial that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 934 N.Y.S.2d 32, 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

Plaintiff correctly argues that the affidavit it submitted in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant [*2]  (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211 [2008]) and thus that there is a triable issue of fact as to whether the verification had been provided.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff's assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021, 13 N.Y.S.3d 141 [2015]; Hernandez v Tepan, 92 AD3d 721, 938 N.Y.S.2d 475 [2012]). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor's residence. In any event, we note that defendant's own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant's motion seeking dismissal based on forum non conveniens, that defendant's evidence had sufficiently demonstrated a lack of significant contacts to New York.

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