May 10, 2019

BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))

Headnote

The main issue in this case was whether the defendant, GEICO Ins. Co., had properly used the workers' compensation fee schedule applicable to chiropractors to reimburse the plaintiff, BQE Acupuncture, P.C., for the acupuncture services it had rendered. The court considered the evidence presented by both parties and determined that the defendant had fully paid the plaintiff for the services at issue in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors. The court found that the defendant had established its entitlement to judgment as a matter of law and granted the defendant's motion for summary judgment, dismissing the complaint. The court also noted that one of the plaintiff's contentions was not properly before the court as it was being raised for the first time on appeal and declined to consider it. Therefore, the court affirmed the order in favor of the defendant, GEICO Ins. Co.

Reported in New York Official Reports at BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))

BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U)) [*1]

BQE Acupuncture, P.C. v GEICO Ins. Co.

2019 NY Slip Op 50743(U) [63 Misc 3d 151(A)]

Decided on May 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2885 K C

BQE Acupuncture, P.C., as Assignee of McCord, Genell, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered August 31, 2016. 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, defendant moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. Plaintiff opposed the motion. The Civil Court granted defendant’s motion.

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 claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services at issue 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]). Consequently, defendant established its entitlement to judgment as a matter of law.

We note that plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019