December 22, 2017

V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51881(U))

Headnote

The court considered an appeal from a denial of a motion for summary judgment in a case involving a provider seeking to recover first-party no-fault benefits. The main issue at hand was whether the defendant's motion papers established the proper mailing of the denial of claim forms and whether the amount sought to be recovered for services rendered was in excess of the workers' compensation fee schedule. The court ultimately held that the defendant had made a prima facie showing that the amount sought by the plaintiff was in excess of the fee schedule, and the plaintiff failed to present evidence to raise a triable issue of fact in opposition. Therefore, the order was reversed and the motion seeking summary dismissal of the complaint was granted.

Reported in New York Official Reports at V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51881(U))

V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51881(U)) [*1]

V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51881(U) [58 Misc 3d 142(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1094 K C

V.S. Care Acupuncture, P.C., as Assignee of Barry Michael Ford, Respondent,
against
NY Central Mutual Fire Ins. Co., Appellant.

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 4, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010.

Defendant’s motion papers established the proper mailing of the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant made a prima facie showing that the amount plaintiff sought to recover for services rendered from October 19, 2009 through February 19, 2010 was in excess of the amount permitted by the applicable workers’ compensation fee schedule. In opposition, plaintiff failed to proffer evidence in admissible form sufficient to raise a triable issue of fact [*2]with respect to defendant’s fee schedule defense.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010 are granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017