Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U))

Reported in New York Official Reports at Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U))

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Easy Care Acupuncture, PC v MVAIC

2017 NY Slip Op 51346(U) [57 Misc 3d 140(A)]

Decided on October 11, 2017

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Gonzalez, JJ.
570146/17

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered September 4, 2015, which denied the parties’ respective motions for summary judgment.

Per Curiam.

Order (Donald A. Miles, J.), entered September 4, 2015, insofar as appealable, affirmed, with $10 costs.

This action, seeking recovery of assigned first party no-fault benefits, is not ripe for summary disposition. While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860 [U] [App Term, 1st Dept 2013]), triable issues remain with respect to the claims denied in whole or part by defendant on the stated basis that the maximum payment had already been made for the billed codes (see TC Acupuncture, P.C., v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435 [U] [App Term, 1st Dept 2014]). The parties’ respective submissions reveal the existence of triable issues of fact as to whether defendant partially exhausted the coverage by payments to another provider, and whether those payments were proper under the insurance department regulations. Defendant’s failure to deny the claim within 30 days does not preclude a defense that the coverage limits have been exhausted (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]).

Plaintiff was not aggrieved by that portion of the order which denied defendant’s motion for summary judgment, even though plaintiff disagrees with particular findings supporting the order in its favor (see Peoples Natl. Bank of Rockland County v Weiner, 100 AD2d 841 [1984]). Thus plaintiff’s appeal from that portion of the order is dismissed.

We have considered plaintiff’s remaining contentions and find them unpersuasive.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 11, 2017