Lotus Acupuncture PC v Hereford Ins. Co.

[*1] Lotus Acupuncture PC v Hereford Ins. Co. 2018 NY Slip Op 50057(U) Decided on January 18, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570400/17

Lotus Acupuncture PC a/a/o Plaintiff-Appellant,

against

Hereford Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered August 29, 2014, which granted defendant's motion for summary judgment and denied plaintiff's cross motion for summary judgment.

Per Curiam.

Order (Jose A. Padilla, Jr., J.) entered August 29, 2014, modified to deny defendant's motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the governing fee schedule (see Healthy Way Accupucture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). The new arguments raised in defendant's reply papers, even if properly considered (cf. Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]) failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]), and, in any event, revealed additional matters in dispute.

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 18, 2018