Renelique v Allstate Ins. Co.

[*1] Renelique v Allstate Ins. Co. 2017 NY Slip Op 51141(U) Decided on September 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 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
2014-1599 Q C

Pierre Jean Jacques Renelique, as Assignee of Leandra, Stewart, Appellant,

against

Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 7, 2014. The order, insofar as appealed from as limited by the brief, upon granting defendant's motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint, which had been denied in an order of the same court (Barry A. Schwartz, J.) dated October 23, 2013, granted defendant's prior cross motion.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule. By order dated October 23, 2013, the Civil Court (Barry A. Schwartz, J.) denied the motion and cross motion. Defendant subsequently moved for leave to reargue its cross motion and, upon reargument, for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, by order entered April 7, 2014, upon granting leave to reargue, the Civil Court (William A. Viscovich, J.) granted defendant's prior cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's argument, defendant demonstrated that it had properly applied the workers' compensation fee schedule to calculate the amount due for services billed under CPT code 20553, and plaintiff failed to rebut defendant's showing (cf. Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff's argument with respect to CPT code 99203 is improperly raised for the first time on appeal.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017