Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-451 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; as so modified, the order is affirmed, without costs.

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 it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment [*2]dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v GEICO Gen. Ins. Co. (____ Misc 3d ____, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-432 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 9, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much an order of the Civil Court as denied the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 on the ground that defendant had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule.

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. [*2]Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97813 and 97814 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 are granted.

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

ENTER:

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 4, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; as so modified, the order is affirmed, without costs.

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 it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 4, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment [*2]dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-402 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; as so modified, the order is affirmed, without costs.

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 it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment [*2]dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v GEICO Gen. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-398 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; as so modified, the order is affirmed, without costs.

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 it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment [*2]dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

The proof submitted by defendant in support of its cross motion was sufficient to demonstrate that it had fully paid plaintiff for the services billed under CPT codes 97811, 97813 and 97814 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s prima facie showing was not rebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 should have been granted.

However, defendant failed to establish, as a matter of law, that it had properly paid plaintiff for the services billed under CPT code 97810, as defendant did not explain its apparent recoding of those services (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-363 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Iseman, Cunningham, Riester & Hyde, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 11, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that EUO scheduling letters and the denial of claim forms at issue 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 SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-354 K C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Richard T. Lau & Associates, (Martin Dolitsky, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered November 12, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered November 12, 2014, the Civil Court granted defendant’s motion.

In support of its motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 [*2]AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-317 Q C

Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 5, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

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. By order entered December 5, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v Country-Wide Ins. Co. (__ Misc 3d __, 2017 NY Slip Op ____ [appeal No. 2015-155 Q C], decided herewith), the order is affirmed.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-294 Q C

Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 2, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for the sums of $246.40 and $985.60, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims.

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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, by order entered December 2, 2014, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for the sums of $246.40 and $985.60, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims.

For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v Country-Wide Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-155 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-288 Q C

Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

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. By order entered December 3, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v Country-Wide Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-155 Q C], decided herewith), the order is affirmed.

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