Motion for Summary Judgment in Balance Art Acupuncture P.C. AS ASSIGNEE OF JUN HUA CHEN v. Mvaic| Trellis.Law

On November 05, 2021 a Motion,Ex Parte was filed involving a dispute between Balance Art Acupuncture P.C. As Assignee Of Jun Hua Chen, and Mvaic, for No Fault in the District Court of New York County.

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FILED: NEW YORK CIVIL COURT - CIVIL 07/14/2022 04:02 INDEX PM NO. CV-705015-20/NY
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/14/2022

CIVIL COURT OF THE CITY OF NEW YORK NO-FAULT
COUNTY OF NEW YORK INDEX NO.: 705015/20
------___-__---___-_____-_____________________________Ç

BALANCE ART ACUPUNCTURE P.C. NOTICE OF
AS ASSIGNEE OF JUN HUA CHEN MOTION FOR
SUMMARY JUDGMENT
PLAINTIFF(S)
RETURN DATE:
-AGAINST-
August 11, 2022

MVAIC
Not on Trial Calendar

DEFENDANT(S). No Calendar Number
----------------------------------------------------X
Part 41, Room 949

S IR S :

PLEASE TAKE NOTICE, that upon the annexed affirmation of

ANGELIQUE dated the 146 of the affidavit of
EVANGELISTA, day July, 2022,

Cheryl dated the 86 of the affidavit of Daniel
Story, day July, 2022, Sposta, D.C.,

L.Ac. dated the 206 of the affidavit of James S.
day June, 2022, Lee, D.C., CPC,

dated the 13* of and upon all the pleadings and proceedings
day June, 2022,

heretofore had herein, the undersigned will move this Court at a Special Term

Part 41, Room 949, to be held at the Courthouse located at 111 Centre Street,

New on the 116 of at 9:30 o'clock in the forenoon of
York, NY, day August, 2022,

that day, or as soon thereafter as Counsel can be heard, for an Order pursuant

to CPLR §3211(a)(1) and §3212(b) dismissing plaintiff's complaint, and for such

other and further relief as this Court may deem just and proper.

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PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR §2214(b)

answering papers is to be served at least seven (7) days prior to the return date

of this motion.

Dated: Jericho, New York

July 14, 2022

Yours, etc.
MARSHALL & MARSHALL, PLLC
Attorneys for Defendant
MVAIC
30 Jericho Executive Plaza

Suite 100 West

Jericho, New York 11753

(516) 997-6000
File No. 37061-0302.0100

BY:
AN E I E ANGELISTA

TO: LAW OFFICES OF GABRIEL & MOROFF, P.C.
Attorneys for Plaintiff(s)
2 Lincoln Ave, Suite 302
Rockville Centre, NY 11570
516-388-7040

File No.: GM20-213867

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CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
_____________________________----________________Ç INDEX NO.: 705015/20
BALANCE ART ACUPUNCTURE P.C.

AS ASSIGNEE OF JUN HUA CHEN AFFIRMATION IN
SUPPORT
PLAINTIFF(S)

-AGAINST-

MVAIC

DEFENDANT(S).
---------------------------------------------------x

ANGELIQUE EVANGELISTA, an attorney duly admitted to practice law

before the Courts of the State of New York, affirms the truth of the following

under the penalties of perjury:

1. That I am an associate of the firm of MARSHALL & MARSHALL,

PLLC, attorneys for defendant, MVAIC, and as such, am fully familiar with the

facts and circumstances regarding this action from a review of the litigation file

maintained in this office.

2. That this affirmation is submitted in support of defendant's motion

seeking an Order granting summary judgment dismissing plaintiff's complaint

against defendant.

MOTION SUMMARY

3. This motion is premised upon the no fault defense of lack of

medical necessity established by peer review report and paid pursuant

to the fee schedule.

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4. In a motion for summary judgment, the movant must make out a

prima facie showing of entitlement to judgment as a matter of law, tendering

sufficient evidence in an admissible form sufficient to establish the absence of

any material issues of fact. See, Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508

N.Y.S.2d 923 (1986); Novacare Med. P.C. v. Travelers Prop. Cas. Ins. Co., 31

Misc.3d 1205(A), 927 N.Y.S.2d 817, 2011 N.Y. Slip Op. 50500 (U) (Dist. Ct.,

Nassau Co, Ciaffa, J.). Summary judgment is a drastic remedy that should only

be granted if it is clear that there is no triable issue of fact. In re Estate of

Beckford, 280 A.D.2d 472, 720 N.Y.S.2d 176 (2d Dept. 2001); Clark Const. Corp.

v. BLF Realty Holding Co., 28 A.D.3d 367, 814 N.Y.S.2d 63 (1st Dept. 2006).

5. Summary judgment should be granted where the moving papers

establish a prima facie entitlement to judgment as a matter of law, regardless of

the sufficiency of the proof in opposition thereto. Westchester County Medical

Center v. New York Central Mutual Fire Ins. Co., 692 N.Y.S.2d 665, 262 A.D.2d

553 (2d Dept. 1999), citing Winegrad v. New York University Medical Center, 64

N.Y.2d 851, 487 N.Y.S.2d 316 (1985). Ifa court finds that the movant has made

a prima facie showing of entitlement to judgment as a matter of law, the burden

then shifts to the adverse party to oppose. See, Cugini v. System Lumber Co.,

111 A.D.2d 489 N.Y.S.2d 492 (1st Dept. Victor
Inc., 114, 1985); Gribenko, M.D.,

P.C. et al. v. Allstate Ins. Co., 10 Misc.3d 139(A), 814 N.Y.S.2d 566 (Table) [App

Term, 2d Dept 2005]; Novacare Med. P.C. v. Travelers Prop. Cas. Ins. Co., 31

Misc.3d 1205(A), 927 N.Y.S.2d 817, (Dist. Ct., Nassau Co, Ciaffa, J.). Where a

plaintiff fails to raise a triable issue of fact in opposition to a motion for summary

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judgment, defendant's motion must be granted. See, Zuckerman v. City of New

York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Murphy v. 136 N. Blvd. Assoc.,

304 A.D.2d 540, 757 N.Y.S.2d 582 (2d Dept. 2003). Moreover, where opposition

papers merely feign issues of fact, they are insufficient to defeat a motion for

summary judgment. See, Krohn v. Melanson, 298 A.D.2d 510, 748 N.Y.S.2d 658

(2d Dept. 2002); Raisner v. City of New York, 272 A.D.2d 460, 707 N.Y.S.2d 498

(2d Dept. 2000).

6. The underlying action seeks reimbursement of insurance benefits

allegedly due plaintiff's assignor pursuant to the New York Motor Vehicle

Reparations Act (No-Fault Law), Insurance Law §5100, et seq. A summons and

complaint was served and issue was joined by service of an answer on March 19,

2021. Attached hereto as EXHIBIT A is a copy of the pleadings.

CLAIM HANDLING DISCUSSION

7. As stated in the affidavit of Cheryl Story, on October 25, 2019, and

person"
in order to "be deemed a covered pursuant to New York State Insurance

Law Section 5221(b)(2), a coverage request letter was issued and mailed to

claimant's attorney requesting proof of residency, written verifiable confirmation

of insurance or lack of insurance, NF2 or NF5, complete hospital records, photo

of the E-scooter, and advising that the claim was pending investigation. On

November 25, 2019, a second coverage request letter was issued and mailed to

claimant's attorney requesting written verifiable confirmation of insurance or lack

of insurance, NF2 or NF5, complete hospital records, photo of the E-scooter, the

relationship between the applicant and possible household member Liang Zhu,

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and advising that the claim was pending investigation. On December 25, 2019, a

third coverage request letter was issued and mailed to claimant's attorney

requesting written verifiable confirmation of insurance or lack of insurance, NF2

or NF5, complete hospital records, photo of the E-scooter, the relationship

between the applicant and possible household member Liang Zhu, and advising

that the claim was pending investigation. On January 27, 2020, a fourth

coverage request letter was issued and mailed to claimant's attorney requesting

written verifiable confirmation of insurance or lack of insurance, NF2 or NF5,

complete hospital records, photo of the E-scooter, the relationship between the

applicant and possible household member Liang Zhu, and advising that the

claim was pending investigation. Copies of the coverage request letter are

annexed hereto at EXHIBIT G.

8. As stated in the affidavit of Cheryl Story, on December 16, 2019,

MVAIC received a claim from Balance Art Acupuncture, P.C. for dates of service

11/02/2019 - in the amount of $1,351.20. A date stamped
11/26/2019,

received copy of the bill is annexed hereto at EXHIBIT B.

a. On December 26, 2019, and in order to "be deemed a covered

person"
pursuant to New York State Insurance Law Section 5221(b)(2), a

coverage request letter was issued and mailed to the provider requesting

written verifiable confirmation of insurance or lack of insurance, NF2 or

NF5, complete hospital records, completed W9, proof the facility is

registered with the New York State Dept. Office of photo of E-
Professions,

scooter, and relationship (ifany) between applicant and possible household

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member: Liang Zhu. On January 31, 2020, a second coverage request

letter was issued and mailed to the provider requesting written verifiable

confirmation of insurance or lack of insurance, NF2 or NF5, complete

hospital records, completed W9, proof the facility is registered with the New

York State Dept. Office of Professions, photo of E-scooter, and relationship

(if any) between applicant and possible household member: Liang Zhu.

Copies of the coverage request letters are annexed hereto at EXHIBIT B.

c. On July 13, 2020, MVAIC received the relationship between

applicant and Liang Zhu and photos of the scooter as a final response, at

which time MVAIC determined that coverage was afforded to the claimant.

Therefore, by letter dated July 17, 2020, MVAIC confirmed the Assignor

person"
met the criteria for a "covered pursuant to New York State

Insurance Law Section 5221(b)(2). Copies of the response and covered

person letter are annexed hereto at EXHIBIT H. It was thereafter decided

that a determination as to medical necessity was required to complete the

claims process. Therefore, the claim was then referred for an independent

peer review.

d. On July 23, 2020, upon review of the documents listed in the

peer review report, Daniel Sposta, D.C., L.Ac. concluded that the medical

services were in fact not medically necessary. Please see that attached

affidavit of Daniel Sposta, D.C., L.Ac. A copy of Daniel Sposta, D.C., L.Ac.'s

peer review report dated July 23, 2020, is annexed hereto at EKHIBIT I.

Thereafter, on July 29, 2020, MVAIC issued and mailed a timely

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Explanation of Reimbursement (EOR), denial, and check number 5405176

in the amount of $596.00, acknowledged by plaintiff. The denial advised

that payment for code(s) 97810 and 97814 was issued pursuant to the fee

schedule and the remaining services were denied pursuant to the peer

review of Daniel Sposta, D.C., L.Ac. Copies of the EOR and denial are

annexed hereto at EXHIBIT B. The EOR and denial were sent in duplicate

via the United States Postal Service.

9. As stated in the affidavit of Cheryl Story, on January 28, 2020,

MVAIC received a claim from Balance Art Acupuncture, P.C. for dates of service

12/04/2019 - in the amount of $810.72. A date stamped received
12/31/2019,

copy of the bill is annexed hereto at EXHIBIT C.

a. On February 10, 2020, and in order to "be deemed a covered

person"
pursuant to New York State Insurance Law Section 5221(b)(2), a

coverage request letter was issued and mailed to the provider requesting

written verifiable confirmation of insurance or lack of insurance, NF2 or

NF5, complete hospital records, completed W9, proof the facility is

registered with the New York State Dept. Office of photo of E-
Professions,

scooter, and relationship (if any) between applicant and possible household

member: Liang Zhu. On March 16, 2020, a second coverage request letter

was issued and mailed to the provider requesting written verifiable

confirmation of insurance or lack of insurance, NF2 or NF5, complete

hospital records, completed W9, proof the facility is registered with the New

York State Dept. Office of Professions, photo of E-scooter, and relationship

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(if any) between applicant and possible household member: Liang Zhu.

Copies of the coverage request letters are annexed hereto at EXHIBIT C.