Easy Care Acupuncture, P.C. v ELRAC, Inc., 2017 NY Slip Op 50234(U)(App. Term 1st Dept. 2017)
(1) “Plaintiff-provider established prima facie that its no-fault claims in the amount of $2,958.13 were overdue, since they were not “denied or paid” within the prescribed 30—day period (see Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]).”
(2) “Nor may defendant assert the defense of excessive fees for the acupuncture services rendered in 2010, inasmuch as it failed to timely and properly mail the denial of claim form to plaintiff assignee”
(3) “In addition, the conclusory assertions in the adjuster’s affidavit were insufficient to raise a triable issue as to whether certain services provided were outside the scope of acupuncture treatment”
Gary Tsirelman: the expert in acupuncture. What else do you want me to say here? Elrac got badly shut out on this appeal.
One Response
Acu “experts” is correct. But, more to the point, Are you intentionally ignoring the 800 pound gorilla here? The appellate term just took the direct position that the 2013 amendments do not immunize the fee schedule defense from the rule of preclusion. One can argue that the amendments would not apply to a 2010 claim in the first place, but the language is clear it did not turn on this: “Nor may defendant assert the defense of excessive fees for the acupuncture services rendered in 2010, inasmuch as it failed to timely and properly mail the denial of claim form to plaintiff assignee”