October 23, 2009
New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. (2009 NY Slip Op 52211(U))
Headnote
Reported in New York Official Reports at New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. (2009 NY Slip Op 52211(U))
New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. |
2009 NY Slip Op 52211(U) [25 Misc 3d 133(A)] |
Decided on October 23, 2009 |
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This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1638 K C.
against
Government Employees Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 30, 2008. The order granted plaintiff’s motion for summary judgment.
ORDERED that the order is reversed without costs and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff established its prima facie entitlement to summary judgment (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [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]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for [*2]defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and plaintiff’s motion for summary judgment should have been denied.
We decline defendant’s request that we search the record and grant defendant summary judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009