GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

[*1] GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. 2017 NY Slip Op 51832(U) Decided on December 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 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
2015-1339 K C

GBI Acupuncture, P.C., as Assignee of Gray, Willie, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 9, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the first four 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 appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

Defendant's denial of claim forms with respect to the claims underlying the first four causes of action were untimely on their face and, as plaintiff argues, defendant did not establish, as a matter of law, that it had tolled its time to pay or deny those claims by timely mailing verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action should have been denied.

With respect to the fifth through eighth causes of action, plaintiff argues that defendant [*2]failed to establish that defendant's fee reductions, which had been done in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, "as a matter of law, that an insurer may use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services" (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

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

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017