Irina Kazanskaya, Ac v GEICO Ins. Co. (2010 NY Slip Op 51735(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 8, 2009, deemed from a judgment of the same court entered July 27, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 8, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $415.74.

ORDERED that the judgment is reversed without costs, the order entered June 8, 2009 is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, summary judgment is granted to defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it had timely and properly reimbursed plaintiff. By order entered June 8, 2009, the Civil Court granted plaintiff’s motion for summary judgment, finding that defendant had failed to demonstrate that it had timely mailed its claim denial. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Since defendant raised no other issue with respect to plaintiff’s establishment of a prima facie case, we do not otherwise pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavit submitted by defendant’s employee was sufficient to establish that defendant’s denial of claim form was timely mailed in accordance with defendant’s standard [*2]office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant further demonstrated that it had properly reimbursed plaintiff, an acupuncturist, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services as those billed for herein (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Amercure Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50068[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010