LVOV Acupuncture, P.C. v Nationwide Ins. Co.

[*1] LVOV Acupuncture, P.C. v Nationwide Ins. Co. 2020 NY Slip Op 51339(U) Decided on November 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2277 K C

LVOV Acupuncture, P.C., as Assignee of Ozhan Tastaban, Appellant,

against

Nationwide Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Kevin J. Philbin (Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 16, 2018. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant's motion for summary judgment dismissing the complaint on the ground that defendant had fully paid plaintiff for the services at issue.

Contrary to plaintiff's contention, the affidavit executed by defendant's certified medical coder, submitted in support of defendant's motion, established that defendant had properly used the workers' compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services in question (see Quality Comprehensive Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 65 Misc 3d 143[A], 2019 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff failed to rebut defendant's showing, and plaintiff's remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020