The Rybak Firm, PLLC (Duane Frankson of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 20, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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

For the reasons stated in Sure Way, Inc., as Assignee of Dixin, Marla v Travelers Ins. Co. (__ Misc 3d ___, 2019 NY Slip Op ______ [appeal No. 2017-9 K C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

The decision and order of this court dated July 13, 2018 (60 Misc 3d 139[A], 2018 NY Slip Op 51130[U]) is hereby recalled and vacated (see motion decided simultaneously herewith).

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. McCormack & Mattei, P.C. (Jamila Shukry and Stafford Harmitt of counsel), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered August 4, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of only $54.74.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the sum of $178.58 for acupuncture services rendered by a licensed acupuncturist. At a nonjury trial, the parties stipulated that plaintiff had established its prima facie case, that defendant had timely denied the claims at issue andthat defendant’s witness was a certified coder. The Civil Court took judicial notice of the workers’ compensation chiropractic fee schedule. In her testimony, defendant’s coder explained how she had calculated the payments for the acupuncture services billed under CPT codes 97810 and 97811 based on the chiropractic fee schedule, and she testified that defendant was offering payment in the amount of $54.74 for an office visit billed under CPT code 99203. Plaintiff did not call a witness to rebut the coder’s testimony. The Civil Court, finding the testimony by defendant’s witness to be credible, determined that defendant had properly paid the claims billed under CPT codes 97810 and [*2]97811, and awarded plaintiff the principal sum of $54.74 for the office visit billed under CPT code 99203. A judgment was entered on August 4, 2016 pursuant to the decision.

Upon a review of the record, we find that the Civil Court properly determined that defendant had established that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 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]) and that plaintiff had failed to rebut defendant’s showing.

Accordingly, the judgment is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. McCormack & Mattei, P.C. (Jamila Shukry and Erin O’Neill of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered August 4, 2016. The judgment, after a nonjury trial, dismissed the complaint.

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

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff had established its prima facie case and that defendant had timely denied the claim in question. The issue for trial was whether defendant had properly paid the bill in accordance with the workers’ compensation fee schedule. The Civil Court consolidated for trial the case at bar with GL Acupuncture, P.C., as Assignee of Gibson, Darrell v Progressive Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2017-303 K C], decided herewith). At the trial, the court took judicial notice of the workers’ compensation chiropractic fee schedule and the parties stipulated that defendant’s witness was a certified medical coder. The witness testified that she had applied the workers’ compensation chiropractic fee schedule to determine payment for the services, which had been provided by a licensed acupuncturist. In the GL Acupuncture trial, the court, finding that the testimony of defendant’s witness was credible and, noting that plaintiff had failed to rebut the testimony, [*2]determined, insofar as is relevant, that defendant had properly paid the claims for services billed under CPT codes 97810 and 97811. In the case at bar, plaintiff’s attorney told the court that he agreed with defense counsel’s statement that defendant’s witness would similarly testify that she had applied the chiropractic rate to the services, which had been provided by a licensed acupuncturist. The court found, as it did in GL Acupuncture, that defendant had correctly applied the fee schedule codes. Consequently, a judgment was entered on August 4, 2016 dismissing the complaint.

We find that defendant established that it had fully paid plaintiff for the services billed 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, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [“we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services”]) and that plaintiff failed to rebut defendant’s showing.

Accordingly, the judgment is affirmed.

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

Gary Tsirelman, P.C. (Irena Golodkeyer of counsel), for appellant. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 10, 2016. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon seven claims for services provided from March 1, 2010 through September 22, 2010.

ORDERED that the order, insofar as appealed from, 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. Plaintiff appeals from so much of an order of the Civil Court entered August 10, 2016 as granted the branches of defendant’s motion seeking summary judgment dismissing seven claims for services provided from March 1, 2010 through September 22, 2010, which claims had been denied on the ground of lack of medical necessity.

Contrary to plaintiff’s assertion, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d [*2]1123 [2008]). In support of its motion, defendant proffered an affirmed report by the doctor who had performed an independent medical examination, which report set forth a factual basis and medical rationale for the doctor’s determination that the assignor’s injuries had resolved and that there was no medical necessity for the rendered services. Defendant’s prima facie showing was not rebutted by plaintiff. Plaintiff’s remaining arguments were improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and, in any event, lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rossillo & Licata, P.C. (Melissa A. Berkman, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 7, 2016. The order granted defendant’s motion to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

ORDERED that 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 to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

For the reasons stated in Prompt Med. Supply Inc., as Assignee of Gladstone Lawrence v State Farm Mut. Auto Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-858 K C], decided herewith), the order is affirmed.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rossillo & Licata, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 7, 2016. The order granted defendant’s motion to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

ORDERED that 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 to vacate a judgment of that court entered October 12, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s late answer.

A defendant seeking to vacate a default in appearing or answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

Contrary to plaintiff’s contention, the Civil Court did not improvidently exercise its discretion in finding that defendant had established a reasonable excuse for not timely answering the complaint, in that defendant had reasonably believed that plaintiff might withdraw the action and, in any event, plaintiff had told defendant that it would not commence any default proceedings (see DeStaso v Bottiglieri, 52 AD3d 453, 455 [2008]; Saltzman v Knockout Chem. & Equip. Co., 108 AD2d 908, 908 [1985]). Contrary to plaintiff’s further argument, defendant [*2]demonstrated that it had a potentially meritorious defense in that plaintiff had failed to provide requested verification.

Accordingly, the order is affirmed.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 6, 2017. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is 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 defendant’s motion which sought to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the Civil Court lacked personal jurisdiction over defendant.

For the reasons states in Pavlova v American Ind. Ins. Co. (60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the order, insofar as appealed from, is reversed, and defendant’s motion to dismiss the complaint is granted (see also Matter of Government Empls. Ins. Co. v Basedow, 28 AD3d 766 [2006]; Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]).

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