August 2, 2019

Natural Therapy Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 51254(U))

Headnote

The court considered a case in which Natural Therapy Acupuncture, as assignee of Boodoo, Anselm Kevin, sought to recover unpaid first-party no-fault benefits from GEICO Ins. Co. Plaintiff moved for summary judgment, while defendant cross-moved for summary judgment to dismiss the complaint on the basis that it had fully paid for the services at issue rendered prior to April 1, 2013. The main issue decided was whether defendant demonstrated that it had timely denied the claims at issue and properly used the workers' compensation fee schedule to determine the amount plaintiff was entitled to receive for the services in question. The holding of the court was that the branch of defendant's cross motion seeking summary judgment to dismiss the unpaid portion of plaintiff's claims should have been granted, reversing the lower court's decision.

Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 51254(U))

Natural Therapy Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 51254(U)) [*1]

Natural Therapy Acupuncture, P.C. v GEICO Ins. Co.

2019 NY Slip Op 51254(U) [64 Misc 3d 141(A)]

Decided on August 2, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-635 K C

Natural Therapy Acupuncture, P.C., as Assignee of Boodoo, Anselm Kevin, Respondent,
against
GEICO Ins. Co., Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 15, 2016. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims is granted.

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 on the ground that it had fully paid plaintiff for the services at issue, which had been rendered prior to April 1, 2013. By order entered December 15, 2016, insofar as appealed from as limited by the brief, the Civil Court denied the branch of defendant’s cross motion seeking dismissal of so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims.

Defendant demonstrated that it had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services in question (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut defendant’s showing,

the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims is granted.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019