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EBT upheldNovember 28, 2015

Duke Acupuncture, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51701(U)(App. Term 2d Dept. 2015)

“Defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination was material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]).”

Chiropractic Assoc. of Richmond Hill, P.C. v Mercury Cas. Co.,2015 NY Slip Op 51700(U)(App. Term 2d Dept. 2015)

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51702(U)(App. Term 2d Dept. 2015)

 

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