Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered June 30, 2009. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant's cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims; as so modified, the order is affirmed, without costs.

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, arguing that it had properly reimbursed plaintiff for the acupuncture services it had rendered, by using the workers' compensation fee schedule applicable to chiropractors who render the same services as those billed for herein. The Civil Court granted plaintiff's motion, stating that defendant had failed to submit the applicable fee schedule to the court.

We find that the workers' compensation fee schedule, which is required by law (see Workers' Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is "of sufficient authenticity and reliability that it may be given judicial notice" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers' Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff did not object to the fee schedule amount set forth by the defense, nor contest the timely denial of the claims, so much of defendant's motion as sought summary judgment dismissing the complaint as to these claims is granted. [*2]

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff's claim of $160.56 for the initial acupuncture visit on September 2, 2005, billed under fee schedule treatment code 99204 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff's motion seeking summary judgment as to this claim, and which denied defendant's cross motion insofar as it sought summary judgment dismissing the complaint as to this claim.

In light of the foregoing, the order is modified by providing that plaintiff's motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant's cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011