Compas Med., P.C. v Nationwide Ins.

[*1] Compas Med., P.C. v Nationwide Ins. 2014 NY Slip Op 51826(U) Decided on December 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1888 K C

Compas Medical, P.C. as Assignee of NICOLE SMITH, Appellant, -

against

Nationwide Ins., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 11, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first and sixth causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue, five based upon plaintiff's failure to appear for duly scheduled independent medical examinations (IMEs), and two on the ground that the claims exceeded the amount permitted by the workers' compensation fee schedule. The Civil Court denied plaintiff's motion and granted defendant's cross motion. Plaintiff appeals, arguing, as to defendant's cross motion, that defendant failed to demonstrate appropriate mailing practices and procedures of the denials and IME scheduling letters, and that defendant failed to establish its fee schedule defense as a matter of law.

Contrary to plaintiff's arguments, the affidavits submitted by defendant in support of its cross motion were sufficient to demonstrate that the denials and IME scheduling letters had been mailed pursuant to a standard office practice and procedure (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]).

As to plaintiff's first and sixth causes of action, we find that defendant failed to establish, as a matter of law, that the fees charged exceeded the amount set forth in the workers' compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and that there is a triable issue of fact with respect thereto.

Accordingly, the order is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first and sixth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.