Lynbrook Pt & Ot, PLLC v Foremost Ins. Co.
Annotate this CaseDecided 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
2014-1744 K C
Lynbrook PT & OT, PLLC as Assignee of Kelvin Sumper, Appellant,
against
Foremost Ins. Co., Respondent.
Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Argyria A.N. Kehagias, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 9, 2014. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012, and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012, and denied the branches of plaintiff's cross motion seeking summary judgment on so much of the complaint as sought to recover on those claims.
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 a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012 and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012 are 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 motion seeking summary judgment dismissing so much of the complaint [*2]as sought to recover upon a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012 and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012, and denied the branches of plaintiff's cross motion seeking summary judgment on so much of the complaint as sought to recover on those claims.
On appeal, plaintiff correctly argues that there is a triable issue of fact with respect to defendant's application of Ground Rule 11 of the workers' compensation fee schedule to the claims at issue.
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 a claim for $174.02 for dates of service February 27, 2012 through March 19, 2012 and a claim for $116.19 for dates of service March 26, 2012 through April 18, 2012, are denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
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