Pain Med., PLLC v Tri State Consumer Ins. Co.

[*1] Pain Med., PLLC v Tri State Consumer Ins. Co. 2022 NY Slip Op 50567(U) Decided on June 10, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1739 K C

Pain Medical, PLLC, as Assignee of Nataliya Ostrovskaya, Respondent,

against

Tri State Consumer Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 27, 2019. The order, insofar as appealed from, denied the branches of defendant's motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers' compensation fee schedule.

ORDERED that the appeal is dismissed.

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 services rendered were not medically necessary. Defendant also sought summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers' compensation fee schedule. Plaintiff opposed defendant's motion. By order entered January 12, 2019, the Civil Court denied the branches of defendant's motion seeking to dismiss so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers' compensation fee schedule but granted the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that the services were not medically necessary.

As the order appealed from held that defendant was entitled to summary judgment dismissing all of the claims on the ground that all of the services were not medically necessary, defendant is not aggrieved by so much of the order as denied the branches of defendant's motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers' compensation fee schedule (see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 545 [1983]; Botie [*2]v Town of Babylon, 71 Misc 3d 1298[A], 2021 NY Slip Op 50234[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).

Accordingly, the appeal is dismissed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022