Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 13, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order is affirmed, without costs.

In this 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, arguing that it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion. On appeal, plaintiff argues that its motion should have been granted and that defendant’s cross motion should have been denied.

Contrary to plaintiff’s argument on appeal, defendant 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, 11th & 13th Jud Dists 2009]).

However, plaintiff correctly argues that the branch of its motion seeking summary judgment on its first cause of action should have been granted, and the branch of defendant’s cross motion seeking to dismiss that cause of action should have been denied. The affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment, as it demonstrated that the claim form upon which that cause of action was based had been mailed to and received by defendant, which failed to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). In opposition, defendant did not demonstrate that it had timely denied that claim. While defendant argues that it tolled its time to pay or deny the claim at issue by requesting verification, the sole letter submitted by defendant in support of this contention merely notified plaintiff that defendant was delaying consideration of the claim pending an independent medical examination and an examination under oath of plaintiff’s assignor. Contrary to defendant’s argument on appeal, this letter did not toll the statutory time [*2]period within which defendant was required to pay or deny the claim (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted and the branch

Pesce, P.J., Aliotta and Solomon, JJ., concur.