June 10, 2022

Pain Med., PLLC v Tri State Consumer Ins. Co. (2022 NY Slip Op 50567(U))

https://www.beynensonlaw.com/case-law/pain-med-pllc-v-tri-state-consumer-ins-co-2022-ny-slip-op50567u/

Court: Appellate Term, Second Department
Decided: June 10, 2022
Citation: 2022 NY Slip Op 50567(U) · 75 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Other

Cite as

Pain Med., PLLC v Tri State Consumer Ins. Co., 75 Misc 3d 137(A), 2022 NY Slip Op 50567(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's appeal from the denial of fee-schedule summary judgment was dismissed because the insurer was not aggrieved. The Civil Court, Kings County, had dismissed all claims for lack of medical necessity while denying summary judgment on the portions of the fifth and ninth causes of action seeking amounts above the workers' compensation fee schedule. Because the insurer had obtained dismissal of the entire complaint, the Appellate Term, Second Department, held that it could not appeal the denial of its alternative grounds under CPLR 5511 and Parochial Bus Sys. v Board of Educ. of City of NY.

Reported in New York Official Reports at Pain Med., PLLC v Tri State Consumer Ins. Co. (2022 NY Slip Op 50567(U))

[*1]

Pain Med., PLLC v Tri State Consumer Ins. Co.

2022 NY Slip Op 50567(U) [75 Misc 3d 137(A)]

Decided on June 10, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1739 K C

Pain Medical, PLLC, as Assignee of Nataliya Ostrovskaya, Respondent,
against
Tri State Consumer Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 27, 2019. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. Defendant also sought summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule. Plaintiff opposed defendant’s motion. By order entered January 12, 2019, the Civil Court denied the branches of defendant’s motion seeking to dismiss so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule but granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the services were not medically necessary.

As the order appealed from held that defendant was entitled to summary judgment dismissing all of the claims on the ground that all of the services were not medically necessary, defendant is not aggrieved by so much of the order as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule (see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 545 [1983]; Botie [*2]v Town of Babylon, 71 Misc 3d 1298[A], 2021 NY Slip Op 50234[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022

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