| SMB Med., PC v Federal Ins. Co. |
| 2015 NY Slip Op 50895(U) [47 Misc 3d 155(A)] |
| Decided on June 12, 2015 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (David B. Cohen, J.), entered October 17, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (David B. Cohen, J.), entered October 17, 2013, insofar as appealed from, modified to grant defendant partial summary judgment dismissing the portion of the claims seeking reimbursement for acupuncture services rendered to the assignor; as modified, order affirmed, with $10 costs to defendant, and the matter remanded for further proceedings in accordance herewith.
Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff's no-fault claims for acupuncture treatment rendered to plaintiff's assignor, by submitting the independent medical examination [IME] report of its examining acupuncturist which set forth a sufficient factual basis and medical rationale for the conclusion that no further acupuncture treatment was medically necessary (see V.S. Care Acupuncture PC v MVAIC, 47 Misc 3d 126[A], 2015 NY Slip Op 50350[U] [App Term, 1st Dept]). Plaintiff's opposing submissions, consisting of an attorney's affirmation and the report of its examining doctor, which, as plaintiff concedes on appeal, did not mention, much less address the medical necessity of the acupuncture services rendered, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]). We remand the matter to Civil Court for a determination of the amount of the claims for acupuncture services, since defendant has failed to establish such amount in its motion papers.
We sustain so much of the order under review as denied defendant's motion for summary judgment dismissing plaintiff's remaining no-fault claims, since the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the medical services underlying these claims.