Atlantic Chiropractic, P.C. v Global Liberty Ins. Co.

[*1] Atlantic Chiropractic, P.C. v Global Liberty Ins. Co. 2020 NY Slip Op 51001(U) Decided on August 28, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2227 K C

Atlantic Chiropractic, P.C., as Assignee of Wilfredo, Cueto, Respondent,

against

Global Liberty Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Anna Goldman, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered September 12, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the amounts sought exceeded the amount permitted by the workers' compensation fee schedule. Plaintiff cross-moved for summary judgment. By order entered September 12, 2018, the Civil Court denied defendant's motion, but, in effect pursuant to CPLR 3212 (g), held that the only remaining issue for trial was defendant's defense that the amounts sought exceeded the amounts permitted by the workers' compensation fee schedule.

Contrary to defendant's contention, the Civil Court properly held that defendant's motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff exceeded the amounts permitted by the workers' compensation fee schedule (see Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 57 Misc 3d 128[A], 2017 NY Slip Op 51157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020