November 6, 2020

LVOV Acupuncture, P.C. v Nationwide Ins. Co. (2020 NY Slip Op 51339(U))

Headnote

The court considered the motion for summary judgment filed by the defendant, Nationwide Ins. Co., in a case brought by LVOV Acupuncture, P.C., as the assignee of Ozhan Tastaban, to recover first-party no-fault benefits. The main issue decided was whether the defendant had properly used the workers' compensation fee schedule to determine the amount owed to the plaintiff for the services in question. The court held that the defendant had fully paid the plaintiff for the services at issue, and that the affidavit executed by the defendant's certified medical coder established that the defendant had properly used the workers' compensation fee schedule. The court found that the plaintiff failed to rebut the defendant's showing, and affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at LVOV Acupuncture, P.C. v Nationwide Ins. Co. (2020 NY Slip Op 51339(U))

LVOV Acupuncture, P.C. v Nationwide Ins. Co. (2020 NY Slip Op 51339(U)) [*1]

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

2020 NY Slip Op 51339(U) [69 Misc 3d 140(A)]

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This opinion is uncorrected and will not be published in the printed Official Reports.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