Opinion
2013-571 K C
08-05-2015
Mind & Body Acupuncture, P.C. as Assignee of IMMACULA THEAGENE, Appellant, August 5, 2015 v. Elrac, Inc., Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jiminez Salta, J.), entered January 18, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, the affidavit submitted by defendant sufficiently set forth defendant's standard mailing practices and procedures for denial of claim forms (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the bills that were denied based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs), the only other argument plaintiff makes on appeal is that the address to which the IME scheduling letters were addressed improperly included an apartment number. However, that argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Consequently, plaintiff has demonstrated no basis to disturb so much of the order as granted the branches of defendant's motion seeking summary judgment dismissing the complaint insofar as it sought reimbursement for those bills.
Contrary to plaintiff's contentions on appeal regarding the remaining bills, which had been partially paid and partially denied based upon the workers' compensation fee schedule, defendant adequately demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 in accordance with the workers' compensation fee schedule (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff also billed for an initial evaluation on May 4, 2010 under code 99202 ("[o]ffice or other outpatient visit for the evaluation and management of a new patient . . ."). However, plaintiff's owner admitted in an affidavit submitted in opposition to defendant's cross motion that "when the fee for treatment is in excess of the fee for the office visit, the greater fee (not both fees) is payable." Here, plaintiff also billed, and defendant paid, for treatment rendered on May 4, 2010 under codes 97810 and 97811, the fee for which exceeded the fee for the initial evaluation, and therefore plaintiff is not entitled to be paid for an office visit on that date. Thus, plaintiff has demonstrated no basis to disturb so much of the order as granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought reimbursement for these remaining bills.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 05, 2015