September 15, 2017

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-21st-century-ins-co-2017-ny-slip-op51197u/

Court: Appellate Term, Second Department
Decided: September 15, 2017
Citation: 2017 NY Slip Op 51197(U) · 57 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Other

Cite as

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 57 Misc 3d 131(A), 2017 NY Slip Op 51197(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's summary judgment motion on one claim was denied on appeal because the propriety of the insurer's denial remained disputed. The Appellate Term, Second Department, modified the order to deny the provider's motion and affirmed denial of the insurer's cross motion on that claim. It dismissed the provider's cross appeal concerning dismissal of the remaining claims as abandoned.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U))

[*1]

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co.

2017 NY Slip Op 51197(U) [57 Misc 3d 131(A)]

Decided on September 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 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
2014-2019 Q C

Charles Deng Acupuncture, P.C., as Assignee of Antoine, Francoise, Respondent-Appellant,
against
21st Century Insurance Company, Appellant-Respondent.

Law Office of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for appellant-respondent. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent-appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 28, 2014. The order, insofar as appealed from by defendant and as limited by its brief, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. The order, insofar as cross-appealed from by plaintiff, denied the branches of plaintiff’s motion seeking summary judgment on the remainder of the complaint and granted the branches of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as reviewed, is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 is denied; as so modified, the order is affirmed, without costs.

Insofar as is relevant to this appeal in an 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. Defendant appeals from so much of an order of the Civil Court entered July 28, 2014 as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. Plaintiff’s cross appeal, from so much of the order as denied the remaining branches of plaintiff’s motion and granted the remaining branches of defendant’s cross motion, is dismissed as abandoned.

On this record, there is a triable issue of fact as to whether defendant properly denied plaintiff’s claim for $80.

Accordingly, the order, insofar as reviewed, is modified by providing that the branch of [*2]plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017

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