Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co.

[*1] Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. 2015 NY Slip Op 51850(U) Decided on December 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570722/14

Easy Care Acupuncture, PC, a/a/o Cecilia Murray, Plaintiff-Appellant, -

against

21st Century Indemnity Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 16, 2013, which granted defendant's motion dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered July 16, 2013, 2013, affirmed with $10 costs.

We sustain the grant of defendant-insurer's motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record reveals that defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely and properly denied plaintiff's no-fault claims on the ground that the fees charged by plaintiff for the acupuncture services rendered to its assignor exceeded the amount permitted by the applicable 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 v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition, plaintiff failed to raise a triable issue. Contrary to plaintiff's present argument, the affidavits of the employees of defendant's mailing center and the entity which administers its no-fault claims, sufficiently detailed their respective office procedures, including the placement of the NF-10/Explanation of Benefits (EOB) and checks made out to plaintiff in partial payment of no-fault benefits, in a clear window envelope so that the mailing and return address on the front of the first page of the document were visible. Plaintiff, which conceded receipt of the payment checks, did not dispute that the NF-10 forms were contained in the same envelopes. Accordingly, defendant established its entitlement to summary judgment dismissing the claims - which sought the difference between the amount charged for the acupuncture services and payments made to plaintiff pursuant to the fee schedule.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2015