December 13, 2013

Karina K. Acupuncture P.C. v MVAIC (2013 NY Slip Op 52127(U))

Headnote

A provider sued MVAIC for assigned first-party no-fault benefits, and the Civil Court, Bronx County, denied MVAIC's motion for summary judgment. MVAIC's affidavits established that it timely denied the claim because the acupuncture fees exceeded the workers' compensation fee schedule, and the plaintiff raised no triable issue about the mailing or the fee calculation. The Appellate Term, First Department, also held that no triable issue existed on tolling by verification requests, since MVAIC may request verification to determine whether the assignor was a covered person. The plaintiff's other challenges to the verification requests were unpreserved. The order was reversed and the motion granted.

Reported in New York Official Reports at Karina K. Acupuncture P.C. v MVAIC (2013 NY Slip Op 52127(U))

[*1]

Karina K. Acupuncture P.C. v MVAIC

2013 NY Slip Op 52127(U) [42 Misc 3d 126(A)]

Decided on December 13, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Hunter, Jr., Torres JJ
570550/13.

Karina K. Acupuncture P.C., a/a/o Clyde Wiggins, Plaintiff-Respondent, – –

against

MVAIC, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 25, 2012, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 25, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The affidavits submitted by defendant MVAIC in support of its motion for summary judgment established that defendant timely denied (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s
claim for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the applicable worker’s compensation fee schedule. In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee.

Nor was any triable issue raised as to whether the 30-day period to pay or deny the claim was tolled by a proper verification request. Contrary to plaintiff’s claim, defendant may properly request verification in order to determine whether plaintiff’s assignor was a covered person entitled to receive no-fault benefits from MVAIC (see New York Hosp. Med. Ctr. of Queens v MVAIC, 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005])
. Plaintiff’s remaining challenges to the verification requests are unpreserved.

Accordingly, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to
plaintiff pursuant to the fee schedule – should have been granted.
[*3]THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: December 13, 2013