Compas Med., P.C. v American Tr. Ins. Co.

[*1] Compas Med., P.C. v American Tr. Ins. Co. 2017 NY Slip Op 51138(U) Decided on September 8, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1534 Q C

Compas Medical, P.C., as Assignee of Akhtar, Waseem, Appellant,

against

American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the second cause of action is 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 an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

Contrary to plaintiff's sole contention on appeal with the respect to the first cause of action, the proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form underlying that cause of action. Consequently, there is no basis to disturb so much of the order as granted the branch of defendant's motion seeking summary judgment dismissing the first cause of action (see Artzel, Inc. v Mercury Cas. [*2]Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51437[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

However, plaintiff correctly argues that defendant's motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff for the claims underlying the second cause of action exceeded the amounts permitted by the workers' compensation fee schedule.

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the second cause of action is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017