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The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant-respondent.

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondents-appellants.

Order, Supreme Court, Bronx County (Donna Mills, J.), entered February 1, 2019, which granted respondents’ motion to vacate, pursuant to stipulation, an order entered on default vacating an arbitration award, deny the petition to vacate the award, and grant statutory attorneys’ fees, to the extent of dismissing the petition, unanimously modified, on the law, to remand for a determination of respondents’ attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), and otherwise affirmed, without costs.

Petitioner failed to establish that respondents’ assignor was injured in the course of his employment, and therefore that it properly denied his claim because workers’ compensation benefits were available to him (see Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848, 849 [2d Dept 2009]). Although the assignor was allegedly injured while driving a livery car, his license from the New York Taxi and Limousine Commission was issued that day. Further, petitioner submitted no evidence that the assignor was on duty or carrying a paying passenger at the time of the incident (cf. Matter of Aminov v New York Black Car Operators Injury Compensation Fund, 2 AD3d 1007, 1007-1008 [3d Dept 2003], lv denied 4 NY3d 709 [2005]).

Supreme Court had the authority to award attorneys’ fees in connection with a “court appeal from a master arbitration award and any further appeals” (11 NYCRR 65-4.10 [j] [4]). Because the court failed to address respondents’ request for attorneys’ fees, the matter is remanded for a determination of the amount of fees to which respondents are entitled (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017]), including fees for the instant appeal (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [1st Dept 2018]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.

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The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Karina Barska of counsel), for respondents.

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered on or about December 5, 2018, which, to the extent appealed from, denied plaintiffs’ motion for summary judgment on their claims seeking a declaration that licensed acupuncturists are entitled to payment of no-fault insurance benefits only as set forth in the workers’ compensation fee schedule for chiropractors, and an order enjoining defendants from claiming payment in litigation or arbitration under the fee schedule for physicians, unanimously affirmed, without costs.

In this action, plaintiff no-fault insurers seek to resolve, as a matter of law, the question of the fee schedule applicable to reimbursement of licensed acupuncturists who provide services to eligible individuals injured in motor vehicle accidents. Under the Insurance Law, no-fault coverage for necessary medical expenses “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” except under “unique circumstances” (Insurance Law § 5108 [a]). Under applicable regulations, where a service is reimbursable but the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with the charges permissible for similar procedures under schedules already adopted or established (11 NYCRR 68.5 [b]; see Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996, 997 [2d Dept 2008], affg 15 Misc 3d 137[A], 2007 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). The superintendent has not adopted a fee schedule applicable to licensed acupuncturists, requiring consideration of “charges permissible for similar procedures under schedules already adopted or established” (11 NYCRR 68.5 [b]).^[FN*]

Plaintiffs did not proffer admissible evidence sufficient to make a prima facie showing of entitlement to judgment on the issue as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Plaintiffs rely on a 2004 informal opinion letter of the former Insurance Department, but that letter did not resolve the issue. It allows insurers to pay “the rates established for doctors and chiropractors,” instead of a higher “prevailing fee in the geographic location of the provider,” so long as there is a review “for consistency with [the] charges permissible for similar procedures” under either fee schedule (Ops Gen Counsel NY Ins Dept No. 04-10-03; see 11 NYCRR 68.5 [b]). The opinion letter “did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware” that “the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians” (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23, 28 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 174 [2019] [requiring judicial deference to an “agency’s rational interpretation of its own regulations”]). While courts have held that “an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept 2013]), such holdings do not foreclose the use of the physician fee schedule in all cases (see e.g. Okslen Acupuncture P.C. v Travco Ins. Co., 44 Misc 3d 135[A], 2014 NY Slip Op 51209[U], *1 [App Term, 1st Dept 2014]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Further, plaintiffs did not “proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule” (Easy Care Acupuncture, P.C. v A. Cent. Ins. Co., 48 Misc 3d 129[A], 2015 NY Slip Op 50973[U], *1 [App Term, 1st Dept 2015]).

In any event, defendants raised an issue of fact as to whether the physician fee schedule should apply. They rely on the former Insurance Department’s regulatory impact statement accompanying its proposed 2010 rule amendment, by which it sought to clarify “inconsistent” court rulings, that “acupuncture treatments are the primary service performed and billed by licensed acupuncturists” and “such treatments merit reimbursement at the same rate that medical doctors receive for comparable services” (NY Reg, July 21, 2010 at 12-13). They also proffered, among other things, an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers’ compensation insurers at the physician rates, for over 15 years, which plaintiffs did not rebut.

Further, Supreme Court did not err by finding the motion for summary judgment on the issue of overbilling to be premature prior to discovery (see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; see also CPLR 3212 [f]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.

Footnotes

Footnote *:We join the recommendation of the Appellate Term, Second Department, that the Superintendent of Insurance consider adopting a fee schedule including licensed acupuncturists to resolve the issue.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 24, 2018. The judgment, entered upon defendant’s default in appearing for trial on April 28, 2017, and upon an order of that court entered May 8, 2018 denying defendant’s motion to open its default, awarded plaintiff the principal sum of $4,319.29.

ORDERED that the appeal is dismissed except insofar as it brings up for review the order entered May 8, 2018; and it is further,

ORDERED that the judgment, insofar as reviewed, is reversed, without costs, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.

In this no-fault action, a default was taken against defendant on April 28, 2017, because counsel appearing on defendant’s behalf, The Law Office of Jason Tenenbaum, P.C., was not the attorney of record and the court determined that counsel had not established “that it represents the [defendant] pursuant to the CPLR,” and, thus, that defendant had failed to appear. Defendant, represented by the same counsel, subsequently moved to open the default. It submitted, among [*2]other things, a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C. as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court (Rosemarie Montalbano, J.) denied defendant’s motion, stating that defendant had “failed to establish a reasonable excuse for failing to have its incoming counsel produce for the court proper proof of its legal representation of defendant.” A judgment was entered on May 24, 2018, awarding plaintiff the principal sum of $4,319.29.

Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967]), which, in this case, was the order entered May 8, 2018 denying defendant’s motion.

Prior to the April 28, 2017 court date, on which the trial was scheduled to begin, defendant had made two different attempts to effect a substitution of counsel. It filed an application in the Supreme Court to have an order of substitution executed. It also attempted to move in the Civil Court, by order to show cause (OSC), to stay the trial pending the determination of the Supreme Court application or, in the alternative, for the Civil Court to make the substitution. Defendant submitted, in support of each application, a November 14, 2016 affidavit executed by Richard Dowd, who identified himself therein as defendant’s claim manager. Dowd listed four firms, including defendant’s former counsel of record in this case, that had previously handled no-fault cases for defendant. Dowd stated that those firms had all been disbanded prior to January of 2016 and that the files previously handled by those firms were all being handled by The Law Office of Jason Tenenbaum, P.C. and another named firm. He further stated that “[w]e hereby consent to The Law Office of Jason Tenenbaum, P.C. and [the other firm] to handle all of the files that above counsel handled, where a Notice of Appearance is filed with the Court.” Defendant also submitted, in support of its Civil Court motion, the April 24, 2017 notice of appearance.

The Civil Court refused to sign the OSC. In court on April 28, 2017, an associate with The Law Office of Jason Tenenbaum, P.C. sought an adjournment or a substitution on the same grounds laid out in the proposed motion, which oral application was denied. However, the Supreme Court granted defendant the requested relief by order entered May 4, 2017. The order of substitution, the validity of which has not been questioned, states that it is “ordered and adjudged that [T]he Law Office of Jason Tenenbaum, P.C. or [the other firm], upon Filing a Notice of Appearance is substituted in the stead” of [the disbanded firms] for all no-fault cases involving Global Liberty Insurance Co. of New York.”

CPLR 321 (b) permits the change or withdrawal of an attorney, insofar as is relevant here, by the filing of a consent to change attorney signed by the retiring attorney or by motion on such notice as the court may direct. Defendant did not strictly comply with CPLR 321 (b) (1), regarding a consent to change attorney, because the retiring attorney was a firm that no longer existed. Defendant was unable to comply with CPLR 321 (b) (2), regarding a motion, because [*3]the Civil Court declined to sign its OSC prior to the trial. Under the circumstances, including the presentation of the Dowd affidavit and notice of appearance to the court before defendant was held to be in default, and the order of substitution entered by the Supreme Court soon after defendant was held to be in default, defendant’s failure to comply with CPLR 321 (b) does not justify the entry of a default judgment (cf. EIFS, Inc. v Morie Co.,298 AD2d 548 [2002]; Tillman v Mason,193 AD2d 666 [1993]; Juers v Barry, 114 AD2d 1009 [1985]). Thus, we grant defendant’s motion to open its default in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith,20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment, insofar as reviewed, is reversed, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Decided on December 6, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Kevin J. Philbin (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 28, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole appellate argument with respect to defendant’s motion for summary judgment, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Decided on December 6, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). As limited by the brief, defendant appeals from so much of an order of the Civil Court entered June 18, 2018 as denied defendant’s cross motion for summary judgment.

In support of its cross motion, defendant submitted an affirmation from the attorney who was to perform the EUOs, which affirmation was sufficient to establish that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Moreover, a review of the record establishes that the Civil Court [*2]correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Decided on December 6, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 11, 2018. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to sever the first cause of action, seeking to recover upon a claim for services rendered to Hajar Abada, from the remaining causes of action and granted the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to sever the first cause of action seeking to recover upon a claim for services rendered to Hajar Abada, from the remaining causes of action. Plaintiff cross-moved for summary judgment. By order entered May 11, 2018, the Civil Court denied defendant’s motion seeking to sever the first cause of action and granted plaintiff’s cross motion for summary judgment. Defendant appeals, as limited by its brief, from so much of the order as denied its motion seeking to sever the first cause of action from the remaining causes of action and granted the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action.

As defendant’s appeal presents no argument with respect to so much of the order as granted the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action, defendant failed to establish a basis to disturb that portion of the order. In light of the foregoing, defendant’s contention that its motion seeking to sever the first cause of action from the remaining causes of action should have been granted is moot (see Lighting Horizons v Kahn & Co., 120 AD2d 648 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 58 Misc 3d 128[A], 2017 NY Slip Op 51720[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.