Perfect Point Acupuncture, P.C. v Clarendon Ins. Co.

[*1] Perfect Point Acupuncture, P.C. v Clarendon Ins. Co. 2012 NY Slip Op 50399(U) Decided on March 5, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-730 K C.

Perfect Point Acupuncture, P.C. as Assignee of PAUL BOWEN, Respondent,

against

Clarendon Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 28, 2009. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover the unpaid balances of assigned claims for first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by its claims examiner which was sufficient to establish that defendant had timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the portions of plaintiff's claims at issue on the ground that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the amounts set forth in the workers' compensation fee schedule. That affidavit, however, was sufficient neither to warrant the dismissal of plaintiff's claim for the initial acupuncture visit of April 18, 2006 (see Raz Acupuncture, P.C. v [*2]AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) nor to establish defendant's contention that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers' compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, the Civil Court properly denied defendant's cross motion for summary judgment dismissing the complaint, and the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012