July 12, 2019

Apple Massage Therapy, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51153(U))

Headnote

The relevant facts in the case are that the appellant, Apple Massage Therapy, was seeking to recover assigned first-party no-fault benefits from 21st Century Ins. Co. The defendant, 21st Century Ins. Co., filed a motion for summary judgment dismissing the complaint, which was granted by the Civil Court. The main issue decided in this case was whether the proof submitted by the defendant was sufficient to demonstrate that the denial of claim forms had been properly mailed and to show that the defendant had properly used the workers' compensation fee schedule to determine the amount plaintiff was entitled to receive. The holding of this case was that the order granting the defendant's motion for summary judgment dismissing the complaint was affirmed. The court found that the defendant's proof was sufficient to establish a presumption that the denial of claim forms had been properly mailed and that the defendant had properly used the fee schedule.

Reported in New York Official Reports at Apple Massage Therapy, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51153(U))

Apple Massage Therapy, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51153(U)) [*1]

Apple Massage Therapy, P.C. v 21st Century Ins. Co.

2019 NY Slip Op 51153(U) [64 Misc 3d 136(A)]

Decided on July 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-407 K C

Apple Massage Therapy, P.C., as Assignee of Nesha Ramdeo, Appellant,
against
21st Century Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Leslie A. Eyma, Jr. of counsel), for respondent.

Appeal from the order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 6, 2015. 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.

Contrary to plaintiff’s contention, 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]) and to demonstrate that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue. Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019