Cite as: Doctor Richard Medical, P.C. v. Praetorian Ins. Co., 570998/11, NYLJ 1202589481346, at *1 (App. Tm., 1st, Decided October 5, 2012)

Before: Shulman, J.P., Hunter, Jr., Torres, JJ.

Decided: October 5, 2012




Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 18, 2011, which denied its motion for summary judgment dismissing the complaint.


Order (Fernando Tapia, J.), entered March 18, 2011, modified to grant defendant partial summary judgment dismissing the claim of plaintiff City Chiropractic, P.C. in the amount of $200; as modified, order affirmed, with $10 costs.

In opposition to defendant's prima facie showing of entitlement to summary judgment on the ground of lack of medical necessity, the medical affirmation submitted by




plaintiffs was sufficient to raise triable issues as to the medical necessity of the services rendered. The conflicting opinions of the parties' respective experts as to medical necessity cannot be resolved on a motion for summary judgment (see generally Batts v. City of New York, 93 AD3d 425 [2012]). In connection with defendant's timely denial of plaintiffs' claim seeking reimbursement for acupuncture services, the proof submitted by defendant was insufficient to establish that the amounts charged by plaintiffs for these services exceeded the rates set forth in the worker's compensation fee schedule (see MIA Acupuncture, P.C. v. Praetorian Ins. Co., 35 Misc 3d 69 [2011]).

We modify only to the extent of dismissing the claim of plaintiff City Chiropractic, P.C., since defendant demonstrated that plaintiff's assignor's insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] §65-1.6) and that the claim was denied due to defendant's application of this deductible (see Natural Therapy Acupuncture, P.C. v. Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [2012]).