Optimum Health Acupuncture, P.C. v. Integon Natl. Ins. Co., 2022-50068

CourtNew York District Court
Writing for the CourtJAMES F. MATTHEWS, J.
PartiesOptimum Health Acupuncture, P.C., a/a/o CLYDE BOWAL, Plaintiff, v. Integon National Ins. Co., Defendant.
Decision Date05 January 2022
Docket NumberIndex CV-1526-20/SM,2022-50068

Optimum Health Acupuncture, P.C., a/a/o CLYDE BOWAL, Plaintiff,

Integon National Ins.
Co., Defendant.

No. 2022-50068

Index No. CV-1526-20/SM

District Court of Suffolk County, Fourth District

January 5, 2022

Unpublished Opinion


Upon the following papers numbered 1 to 65 read on this motion

by defendant for an order seeking Summary Judgment of dismissal; by Notice of Motion/Order to Show Cause and supporting papers 1-4, 61; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 62, 63; Replying Affidavits and supporting papers 64, 65; Filed papers; Other exhibits: 5-60, (and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the motion by defendant for summary judgment dismissing plaintiff's complaint pursuant to CPLR 3212(b), is granted.

Plaintiff medical provider seeks reimbursement from defendant insurer for assigned first party no-fault benefits for medical dates of service ("DOS") rendered to plaintiff's assignor from 02/06/2019 through 03/19/2020, for injuries sustained from a car accident of 01/28/2019, in the outstanding sum of $7, 399.77, under New York's No-Fault Law.

Defendant now moves for summary judgment dismissing the complaint pursuant to CPLR 3212(b), supported by the affidavit of its Claims Supervisor, Danuta Fudali, which asserts, inter alia, that defendant timely mailed its NF-10 Denial Of Claim forms ("denials") and Explanation of Benefits ("EOB's") to plaintiff, pursuant to the practices and procedures it established to ensure timely deliver of its mailings to the intended recipient, thereby creating a presumption of receipt. The denials were based upon defendant's payment in full for plaintiff's submissions of excessive billing not compiled in accordance with the Workers' Compensation Fee Schedule ("Fee Schedule"), pursuant to the findings in the affidavit of Carolyn Mallory, C.P.C. ("Certified Professional Coder") [1], and the lack of medical necessity for certain chiropractic and acupuncture billing, as supported by the Independent Medical Examination ("IME") and report of Dr. John Iozzio, D.C., L.Ac., dated 03/26/2019, the IME report of Dr. John Iozzio dated 05/02/2019, and the peer review report of Dr. Daniel Sposta, D.C., L.Ac., dated 05/15/2019, which cut off any further chiropractic and acupuncture treatments as of 04/22/2019 and 05/23/2019, respectively.

In opposition to the motion for summary judgment, plaintiff asserts it attached to its papers as an exhibit, the affidavit of Dr. Vadim Dolsky, L.Ac., to rebut the claims of Dr. Iozzio and Dr. Sposta, by demonstrating plaintiff's assignor was symptomatic and required the treatments provided by the treating providers; that Dr. Iozzio's IME reports concede that the evaluations and treatments prior to the IME dates were medically necessary; that defendant's IME reports failed to demonstrate the disputed services were inconsistent with generally accepted medical or...

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