SMB MEDICAL, PC, A/A/O FAIM FORTO, plf-res v. FEDERAL INSURANCE COMPANY, def-app

15-174. SMB MEDICAL, PC, A/A/O FAIM FORTO, plf-res v. FEDERAL INSURANCE COMPANY, def-app — 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.

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15-174. SMB MEDICAL, PC, A/A/O FAIM FORTO, plf-res v. FEDERAL INSURANCE COMPANY, def-app — 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.

SMB MEDICAL, PC, A/A/O FAIM FORTO, plf-res v. FEDERAL INSURANCE COMPANY, def-app

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