Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51861(U))

Decided on December 22, 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
2015-402 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office Emilia I. Rutigliano, P.C., 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 December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment [*2]dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.

For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v GEICO Gen. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.