New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. 2015 NY Slip Op 51706(U) Decided on November 19, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1428 K C

New Way Acupuncture, P.C. as Assignee of IGOR KRIS, Appellant, -

against

New York Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 12, 2013. The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff's cross motion seeking summary judgment upon that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 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 appeals from so much of an order of the Civil Court as granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff's cross motion seeking summary judgment upon that portion of the complaint.

A review of defendant's letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claims at issue (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to establish, as a matter of law, that it is not precluded from raising its proffered defense that the fees sought exceeded the amount permitted by the workers' compensation fee schedule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 should have been denied.

Plaintiff's cross motion failed to establish either that defendant had failed to pay or deny the claims seeking to recover the unpaid portions of the claims for $2,015 and $985 within the [*2]requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff failed to demonstrate its prima facie entitlement to summary judgment upon this portion of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are denied.

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

Decision Date: November 19, 2015