February 19, 2013

Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50255(U))

Headnote

The court considered the denial of claim forms by the defendant and whether they were sufficient to preserve the defendant's fee schedule defense. 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. The court held that while the denial of claim forms were sufficient to preserve the defendant's fee schedule defense, there were triable issues of fact as to whether the defendant had fully paid the plaintiff for the services in accordance with the fee schedule. Therefore, the court denied the defendant's motion for summary judgment and modified the order accordingly.

Reported in New York Official Reports at Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50255(U))

Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50255(U)) [*1]

Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2013 NY Slip Op 50255(U) [38 Misc 3d 142(A)]

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1299 K C.

Shara Acupuncture, P.C. as Assignee of LUZ MARIE MENDEZ, Appellant, —
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jiminez Salta, J.), entered March 30, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment is denied; as so modified, the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s argument on appeal, defendant’s denial of claim forms were sufficient to preserve defendant’s fee schedule defense (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, there are triable issues of fact as to whether defendant has fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Consequently, on this record, summary judgment in favor of defendant is not warranted (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013