Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 21, 2007. The order, insofar as appealed from, denied defendant's motion for summary judgment.

Order, insofar as appealed from, reversed without costs, defendant's motion for summary judgment granted and complaint dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. In an affidavit in support of defendant's motion for summary judgment, an employee in defendant's claims division stated that plaintiff billed defendant for 21 sessions of acupuncture with its licensed acupuncturist at a rate of $90 per session, for a total of $1,890. Defendant paid plaintiff for 21 sessions at a reduced rate of $29.30 per session, which, defendant claimed, was the workers' compensation fee schedule amount payable to licensed chiropractors for similar services, for a total of $615.30. Plaintiff sought full reimbursement, or the remaining $1,274.70, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated. Finding that triable issues of fact existed, the Civil Court denied defendant's motion for summary judgment and plaintiff's cross motion for summary judgment. Defendant appeals from so much of the order as denied its motion for summary judgment. [*2]

Defendant established its prima facie entitlement to summary judgment by showing that it timely mailed its denial of claim forms, which partially denied plaintiff's claims on the ground that the fees charged by plaintiff exceeded the maximum allowance under the applicable fee schedules. Contrary to plaintiff's contention, the affidavit submitted by defendant, from one of its employees in its claims division, sufficiently established that the denial of claim forms were timely mailed in accordance with defendant's standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the 21 sessions (see Ava Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant's motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: May 19, 2009