Second Department Archives - Page 101 of 356

Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))

Reported in New York Official Reports at Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))

Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U)) [*1]

Masigla v Country Wide Ins. Co.

2017 NY Slip Op 51888(U) [58 Misc 3d 143(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-1528 Q C

Maria S. Masigla, P.T., as Assignee of Cadet, Daniel, Appellant,
against
Country Wide Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 29, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not received timely notice of the accident.

Contrary to plaintiff’s argument, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St.Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument with respect to defendant’s cross motion is not properly before this court, as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

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

Charles Deng Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51887(U))

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51887(U))

Charles Deng Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51887(U)) [*1]

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

2017 NY Slip Op 51887(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.

Charles Deng Acupuncture, P.C., as Assignee of Doreus, Gray, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York Kings County (Carol Ruth Feinman, J.), entered February 17, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of claims for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had either paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule or had denied the claims on the ground of lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect pursuant to CPLR 3212 (g), that the only remaining issues for trial were medical necessity and the reduction of plaintiff’s claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

With respect to plaintiff’s claims seeking to recover for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012, defendant demonstrated that it had fully paid plaintiff for the services 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]). As defendant’s prima facie showing was not rebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the Civil Court should have granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims. Defendant’s contention with respect to the amount at issue on the two remaining claims lacks merit.

Defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of claims for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012 are granted.

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

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

Renelique v Allstate Ins. Co. (2017 NY Slip Op 51885(U))

Reported in New York Official Reports at Renelique v Allstate Ins. Co. (2017 NY Slip Op 51885(U))

Renelique v Allstate Ins. Co. (2017 NY Slip Op 51885(U)) [*1]

Renelique v Allstate Ins. Co.

2017 NY Slip Op 51885(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.

Pierre Jean Jacques Renelique, as Assignee of Tristan Griffith, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 20, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

For the reasons stated in Renelique, as Assignee of Audley Noyan v Allstate Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1180 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

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

Renelique v Allstate Ins. Co. (2017 NY Slip Op 51884(U))

Reported in New York Official Reports at Renelique v Allstate Ins. Co. (2017 NY Slip Op 51884(U))

Renelique v Allstate Ins. Co. (2017 NY Slip Op 51884(U)) [*1]

Renelique v Allstate Ins. Co.

2017 NY Slip Op 51884(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.

Pierre Jean Jacques Renelique, as Assignee of Audley Noyan, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 17, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule—defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

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

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

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.

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

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))

Reported in New York Official Reports at Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U)) [*1]

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co.

2017 NY Slip Op 51879(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.

Easy Care Acupuncture, P.C., as Assignee of Pinto Thompson, Appellant,
against
21 Century Advantage Ins. Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 5, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 for summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff’s remaining contention lacks merit (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2015]).

Accordingly, the order is affirmed.

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

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

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U))

Reported in New York Official Reports at Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U))

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U)) [*1]

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co.

2017 NY Slip Op 51877(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.

Moon Rehab, P.T., P.C., as Assignee of Figueroa Lizzette, Appellant,
against
Ameriprise Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 4, 2015. 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 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 on the ground that plaintiff had failed to appear for examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered March 4, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claims form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

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

Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U))

Reported in New York Official Reports at Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U))

Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U)) [*1]

Canon Chiropractic, P.C. v Metlife Ins. Co.

2017 NY Slip Op 51875(U) [58 Misc 3d 141(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.

Canon Chiropractic, P.C., as Assignee of Joseph Miguel, Appellant,
against
Metlife Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 19, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

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

Medical Records Retrieval, Inc. v Allstate Ins. Co. (2017 NY Slip Op 51873(U))

Reported in New York Official Reports at Medical Records Retrieval, Inc. v Allstate Ins. Co. (2017 NY Slip Op 51873(U))

Medical Records Retrieval, Inc. v Allstate Ins. Co. (2017 NY Slip Op 51873(U)) [*1]

Medical Records Retrieval, Inc. v Allstate Ins. Co.

2017 NY Slip Op 51873(U) [58 Misc 3d 141(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.

Medical Records Retrieval, Inc., Doing Business as Kamara Supplies, as Assignee of Sigua Juan, Appellant,
against
Allstate Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant. Law Offices of Peter C. Merani, P.C. (Josh Youngman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. 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 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.

Plaintiff’s arguments in opposition to defendant’s motion for summary judgment are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has demonstrated no basis to disturb the order which granted defendant’s motion and denied plaintiff’s cross motion.

Accordingly, the order is affirmed.

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

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

Acuhealth Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51871(U))

Reported in New York Official Reports at Acuhealth Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51871(U))

Acuhealth Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51871(U)) [*1]

Acuhealth Acupuncture, P.C. v Hereford Ins. Co.

2017 NY Slip Op 51871(U) [58 Misc 3d 141(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.

Acuhealth Acupuncture, P.C., as Assignee of Nicola Thierens, Appellant,
against
Hereford Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 28, 2015. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover for those services.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion in its entirety and denied plaintiff’s cross motion. As limited by its brief, plaintiff appeals from so much of the Civil Court’s order as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code [*2]97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover for those services.

It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. The workers’ compensation fee schedule does not assign a relative value to this code, but instead has assigned it a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Defendant’s denial is based upon plaintiff’s failure to provide such documentation with its claim form. However, as defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under CPT code 97039, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover for services rendered under that code (see Gaba Med., P.C. v Progressive Specialty Ins. Co., 36 Misc 3d 139[A], 2012 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

As plaintiff failed to demonstrate that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), plaintiff failed to establish its prima facie entitlement to judgment as a matter of law with respect to that claim. Consequently, the branch of plaintiff’s cross motion seeking summary judgment upon that claim was properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied.

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

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