MIA Acupuncture, P.C. v Integon Gen. Ins. Corp.

[*1] MIA Acupuncture, P.C. v Integon Gen. Ins. Corp. 2012 NY Slip Op 50393(U) Decided on March 2, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1640 K C.

MIA Acupuncture, P.C. as Assignee of LADASHA HORAN, Respondent,

against

Integon General Insurance Corporation, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 5, 2009. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by its claims representative and an affidavit by an employee of a third party responsible for mailing defendant's denial of claim forms and partial payments, which together demonstrated that defendant had timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the portion of plaintiff's claims at issue based upon the workers' compensation fee schedule. Moreover, defendant demonstrated that it had fully paid [*2]plaintiff for the acupuncture services billed for, in accordance with the workers' compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 02, 2012