Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co.

[*1] Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co. 2014 NY Slip Op 51391(U) Decided on September 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
13-453

Epic Pain Management & Anesthesia Consultants, LLC, a/a/o Pierre Souffrant, Plaintiff-Appellant,

against

New York Central Mutual Fire Ins. Co. Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered July 29, 2013, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered July 29, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of assigned first-party no-fault benefits arising from a series of epidural injections administered by plaintiff in its Hackensack, New Jersey office, is not ripe for summary dismissal. Defendant's moving submission below relied exclusively on a worker's compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service "is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider." Notably absent from defendant's moving papers was any discussion of the proper "geographic location" of the plaintiff provider — which apparently maintains offices in both New York and New Jersey — or of the "prevailing fee" were such location determined to be in New Jersey. Defendant's attempts to rectify these deficiencies in its reply papers below were untimely (see e.g. Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [2012]) and, even if defendant's newly raised arguments were considered, they create rather than eliminate genuine triable issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: September 16, 2014