Karina K. Acupuncture P.C. v State-Wide Ins. Co.

[*1] Karina K. Acupuncture P.C. v State-Wide Ins. Co. 2014 NY Slip Op 51518(U) Decided on October 22, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570166/14

Karina K. Acupuncture P.C., a/a/o Rigaud Carrenard, Plaintiff-Appellant,

against

State-Wide Insurance Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered September 17, 2013, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d'Auguste, J.), entered September 17, 2013, modified by reinstating plaintiff's claim for first-party no-fault benefits in the sum of $1,259.53; as modified, order affirmed, without costs.

The affidavits and other documentary evidence submitted by defendant established prima facie that defendant timely denied that portion of plaintiff's first-party no-fault claim seeking payment of $1,182.53 - stemming from acupuncture services rendered by plaintiff during the period October 1, 2009 through October 21, 2009 - on the ground that the fees plaintiff charged exceeded the amount permitted by the applicable workers' compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Ge. Ins. Co., 16 Misc 3d 23 [2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant's mailing of the denial form issued in connection with this claim or the calculation of the fee. Accordingly, defendant's motion, insofar as it sought to dismiss the $1,182.53 claim - representing the difference between the amount charged for the services rendered and payment made to plaintiff pursuant to the fee schedule - was properly granted.

However, defendant failed to establish its entitlement to summary dismissal of plaintiff's remaining claim of $1,259.53, since its motion papers below failed to address the validity of this claim.

We note, in passing, that while plaintiff's complaint and defendant's moving papers below did not make clear that two distinct no-fault claims are involved in this litigation, both the record as a whole and the parties' appellate briefs plainly establish that point.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur.
Decision Date: October 22, 2014