Easy Care Acupuncture, P.C. v ELRAC, Inc.

[*1] Easy Care Acupuncture, P.C. v ELRAC, Inc. 2017 NY Slip Op 50234(U) Decided on February 22, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Gonzalez, JJ.
570693/16

Easy Care Acupuncture, P.C., a/a/o Ronald Wages, Plaintiff-Appellant, -

against

ELRAC, Inc. d/b/a Enterprise Rent-A-Car, Defendant-Respondent.

Plaintiff, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered June 3, 2014, which denied its cross motion for summary judgment.

Per Curiam.

Order (David B. Cohen, J.) entered June 3, 2014, modified to grant plaintiff's cross motion for summary judgment in the principal sum of $2,958.13; as modified, order affirmed, without costs.

Plaintiff-provider established prima facie that its no-fault claims in the amount of $2,958.13 were overdue, since they were not "denied or paid" within the prescribed 30—day period (see Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). In opposition, defendant failed to raise a triable issue. Defendant waived any objections based on lack of proof of assignment, since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees for the acupuncture services rendered in 2010, inasmuch as it failed to timely and properly mail the denial of claim form to plaintiff assignee (see Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]). In addition, the conclusory assertions in the adjuster's affidavit were insufficient to raise a triable issue as to whether certain services provided were outside the scope of acupuncture treatment (see generally Sunrise Acupuncture PC v Tri-State Consumer Ins. Co., 42 Misc 3d 151[A], 2014 NY Slip Op 50435[U][App Term, 1st Dept 2014]; VS Care Acupuncture v. State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 22, 2017