July 21, 2017

Natural Therapy Acupuncture, P.C. v Nationwide Ins. (2017 NY Slip Op 50943(U))

Headnote

The relevant facts considered by the court were that the defendant had properly used the workers' compensation fee schedule applicable to chiropractors to reimburse the plaintiff for acupuncture services. The main issue was whether the defendant had fully paid the plaintiff for the services at issue in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors. The holding of the court was that the defendant had established its entitlement to judgment as a matter of law, and that the order of the Civil Court granting the defendant's motion for summary judgment dismissing the complaint was affirmed. Additionally, the court declined to consider a remaining contention from the plaintiff as it was being raised for the first time on appeal.

Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v Nationwide Ins. (2017 NY Slip Op 50943(U))

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

Natural Therapy Acupuncture, P.C., as Assignee of Pantaleon, Rustler, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Epstein, Gialleonardo, Harms & McDonald (John K. Corrigan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 31, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. Plaintiff opposed the motion. The Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further 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 Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant established its entitlement to judgment as a matter of law.

We note that plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 21, 2017