SK Prime Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co.

[*1] SK Prime Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. 2014 NY Slip Op 50630(U) Decided on April 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3103 K C.

SK Prime Medical Supply, Inc. as Assignee of JENNIFER DENOFRIO, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 2, 2011. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the sum of $201.96, representing the portion of a $472.30 claim that was not paid by defendant. Plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

Contrary to plaintiff's argument on appeal, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim form (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]). Furthermore, defendant demonstrated that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant had denied $200 of the claim at issue due to the deductible (see Insurance Law § 5102 [b] [3]). Consequently, the Civil Court properly granted defendant's motion for summary judgment dismissing so much of the complaint as seeks $200 (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Finally defendant's submission of its claims representative's affidavit, along with a copy of the "NYS Medicaid DME Services Fee Schedule," which has been adopted as the Durable Medical Goods Fee Schedule for Workers' Compensation (see 12 NYCRR 442.2 [a]), was sufficient to demonstrate that plaintiff was entitled to receive $22.04 for Code E0190, the sum defendant has already paid, and not $24.00, the sum that plaintiff had billed (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 affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: April 07, 2014