Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co.

[*1] Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. 2015 NY Slip Op 51623(U) Decided on November 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570815/15

Healthy Way Acupuncture, P.C., a/a/o Samuel Vazquez, Plaintiff-Appellant,

against

Amica Mutual Ins. Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), dated January 7, 2015, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Alexander M. Tisch, J.), dated January 7, 2015, affirmed, with $10 costs.

The affidavits and other documentary evidence submitted by defendant in support of its motion for summary judgment established, prima facie, that it timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff's claim for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services rendered to its assignor exceeded the amount permitted by the worker's 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, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept 2009]). The mistake contained in the notary's jurat (as to the year) was properly disregarded, since no substantial right of a party was affected (see CPLR 2001).

In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant's mailing of the denial or the calculation of the fee. Accordingly, defendant's motion for summary judgment dismissing the claim - which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule - was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 12, 2015