Gl Acupuncture, P.C. v Praetorian Ins. Co.

[*1] Gl Acupuncture, P.C. v Praetorian Ins. Co. 2016 NY Slip Op 51419(U) Decided on September 27, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-781 Q C

GL Acupuncture, P.C., as Assignee of KENYA M. JONES, Appellant,

against

Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 10, 2014. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant's cross motion seeking summary judgment dismissing the first through fifth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of plaintiff's first cause of action as sought to recover for services rendered on July 8, 2010 is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant's cross motion seeking summary judgment dismissing the first through fifth causes of action.

Contrary to plaintiff's arguments on appeal, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms had been properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant had fully paid plaintiff for the services billed for under CPT codes 97810 and 97811 in accordance with the workers' compensation fee schedule. However, plaintiff correctly argues that defendant did not proffer sufficient evidence to warrant the dismissal of plaintiff's claim for the initial acupuncture visit on July 8, 2010 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of plaintiff's first cause of action as sought to recover for services rendered on July 8, 2010 is denied.

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

Decision Date: September 27, 2016