Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co.

[*1] Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. 2014 NY Slip Op 51127(U) Decided on July 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570197/14

Healthy Way Acupuncture P.C., a/a/o Shavndre Shuler, Plaintiff-Respondent,

against

Metropolitan Property and Casualty Ins. Co., Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated October 1, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Peter H. Moulton, J.), dated October 1, 2013, insofar as appealed from, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted in its entirety.

The affidavits 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 2008 claims 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 applicable worker's compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Gen. Ins. Co., 26 Misc 3d 23 [2009]; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004]). Contrary to plaintiff's assertion, the affidavit submitted by defendant's claims representative, together with excerpts of the fee schedule of which we may take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), were sufficient to establish defendant's proper calculation of the fees due under the schedule (see Natural Acupuncture Health, P.C. v. Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 500410[U] [App Term, 1st Dept 2011]; see also GL Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51448[U] [App Term, 2nd, 11th & 13th Jud Dists 2013]). In opposition, plaintiff failed to raise a triable issue regarding the efficacy of defendant's mailing of the denials 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 acupuncture services and payments made to plaintiff pursuant to the fee schedule - should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur.
Decision Date: July 24, 2014