Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51152(U))
| Gentlecare Ambulatory Anesthesia Servs. v State Farm Mut. Auto. Ins. Co. |
| 2017 NY Slip Op 51152(U) [57 Misc 3d 127(A)] |
| Decided on September 8, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN A. SOLOMON, JJ
2014-1910 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. De Martini & Yi, LLP (Bryan Visnius, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 17, 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
There is no merit to the arguments raised by plaintiff with respect to the sufficiency of defendant’s proof that the EUO scheduling letters and denial of claim forms had been timely and properly mailed (see generally 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.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51147(U))
| Compas Med., P.C. v American Tr. Ins. Co. |
| 2017 NY Slip Op 51147(U) [57 Misc 3d 127(A)] |
| Decided on September 8, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 8, 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
2014-1825 Q C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 30, 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Defendant’s cross motion for summary judgment was based upon the defense, among others, that defendant had not received timely notice of the accident (see 11 NYCRR § 65-1.1). Contrary to plaintiff’s sole argument on appeal with respect to that defense, the Civil Court correctly granted defendant’s cross motion for summary judgment dismissing the complaint, as the proof submitted by defendant established that it had not received timely notice of the accident, which proof was not rebutted by plaintiff.
We reach no other issue.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at Lynbrook Pt & Ot, PLLC v Foremost Ins. Co. (2017 NY Slip Op 51146(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Foremost Ins. Co., Respondent.
Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Argyria A.N. Kehagias, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 9, 2014. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012, and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012, and denied the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on those claims.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012 and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012 are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint [*2]as sought to recover upon a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012 and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012, and denied the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on those claims.
On appeal, plaintiff correctly argues that there is a triable issue of fact with respect to defendant’s application of Ground Rule 11 of the workers’ compensation fee schedule to the claims at issue.
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012 and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012, are denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at Culex Acupuncture, P.C. v 21st Century Indem. Ins. Co. (2017 NY Slip Op 51145(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
21st Century Indemnity Ins. Co., Respondent.
Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (K. Marcy Singh-Castillo, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service February 17, 2012 through March 23, 2012, and April 18, 2012 through May 2, 2012, and denied the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as 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 appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service February 17, 2012 through March 23, 2012, and April 18, 2012 through May 2, 2012, and denied the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon those claims.
Plaintiff’s sole argument on appeal, that the aforesaid branches of defendant’s motion [*2]should have been denied because defendant, without explanation, had paid the claims at issue at the rate for acupuncture services performed by a chiropractor, but paid other claims at the rate for acupuncture services performed by a medical doctor, is without merit (see Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51710[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at 525 EVM, Inc. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51144(U))
| 525 EVM, Inc. v GEICO Gen. Ins. Co. |
| 2017 NY Slip Op 51144(U) [57 Misc 3d 127(A)] |
| Decided on September 8, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1705 K C
against
GEICO General Insurance Company, Respondent.
Fuld & Karp, P.C. (David Karp, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered June 2, 2014. The order, insofar as appealed from and as limited by the brief, upon denying plaintiff’s motion for summary judgment, failed to find, pursuant to CPLR 3212 (g), that plaintiff had established certain facts for all purposes in the 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding that there were triable issues of fact.
Plaintiff’s sole argument on appeal is that the Civil Court, upon denying plaintiff’s motion for summary judgment, should have found, pursuant to CPLR 3212 (g), that plaintiff had established certain facts for all purposes in the action. For the reasons stated in 525 EVM, Inc., as Assignee of Dzianis Haiduk v GEICO Gen. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1926 K C], decided herewith), the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51143(U))
| GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2017 NY Slip Op 51143(U) [57 Misc 3d 126(A)] |
| Decided on September 8, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 8, 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
2014-1605 Q C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 12, 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.
Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which were done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, 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 for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51142(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 12, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order, insofar as appealed from, 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. Insofar as is relevant to this appeal, the Civil Court denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action.
Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that it had fully paid plaintiff for the claim underlying the first cause of action in accordance with the [*2]workers’ compensation fee schedule. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action should have been denied. However, plaintiff failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at Renelique v Allstate Ins. Co. (2017 NY Slip Op 51141(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 7, 2014. The order, insofar as appealed from as limited by the brief, upon granting defendant’s motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint, which had been denied in an order of the same court (Barry A. Schwartz, J.) dated October 23, 2013, granted defendant’s prior cross motion.
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 on the ground that defendant had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. By order dated October 23, 2013, the Civil Court (Barry A. Schwartz, J.) denied the motion and cross motion. Defendant subsequently moved for leave to reargue its cross motion and, upon reargument, for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, by order entered April 7, 2014, upon granting leave to reargue, the Civil Court (William A. Viscovich, J.) granted defendant’s prior cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s argument, defendant demonstrated that it had properly applied the workers’ compensation fee schedule to calculate the amount due for services billed under CPT code 20553, and plaintiff failed to rebut defendant’s showing (cf. Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s argument with respect to CPT code 99203 is improperly raised for the first time on appeal.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))
| JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2017 NY Slip Op 51140(U) [57 Misc 3d 126(A)] |
| Decided on September 8, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 8, 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
2014-1540 Q C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. De Martini & Yi, LLP (Bryan Visnius, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 4, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied; as so modified, the order is affirmed, without 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.
We find no merit to plaintiff’s sole argument on appeal with respect to the branches of defendant’s motion seeking summary judgment dismissing the first, third and fourth causes of action—which the Civil Court granted on the ground that the underlying claims had been paid in full—that the proof defendant submitted was insufficient to establish the payment of these claims.
However, the branch of defendant’s motion seeking summary judgment dismissing the [*2]second cause of action should have been denied. While, contrary to plaintiff’s contention, defendant demonstrated, prima facie, that it had not received the requested verification, plaintiff correctly argues that the affidavit submitted in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Reported in New York Official Reports at Logic Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51139(U))
| Logic Chiropractic, P.C. v American Tr. Ins. Co. |
| 2017 NY Slip Op 51139(U) [57 Misc 3d 126(A)] |
| Decided on September 8, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 8, 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
2014-1536 Q C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 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.
There is no merit to plaintiff’s arguments regarding the adequacy of the proof submitted by defendant establishing that it had fully paid plaintiff for the claims at issue.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017