October 8, 2013

Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))

Headnote

The court considered the appeal of an order by the Civil Court that granted the defendant's motion for summary judgment dismissing the complaint by a provider seeking to recover first-party no-fault benefits. The main issue decided was whether the defendant properly used the workers' compensation fee schedule to determine the amount the plaintiff was entitled to receive for acupuncture services performed by chiropractors. The court held that the defendant's affidavits sufficiently established the timely mailing of denial of claim forms, and that the defendant had properly used the workers' compensation fee schedule to determine payment for the services at issue. The judgment of the Civil Court granting the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))

Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U)) [*1]

Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2013 NY Slip Op 51748(U) [41 Misc 3d 131(A)]

Decided on October 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2012-370 K C.

GL Acupuncture, P.C. as Assignee of MARIE M. MEHU, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 1, 2011, deemed from a judgment of the same court entered December 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 1, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted affidavits by its claims representatives which sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The claims had been denied on the ground that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, an affidavit by defendant’s claims representative established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmation of plaintiff’s attorney did not raise a triable issue of fact in opposition to defendant’s motion.

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal. Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 08, 2013