Adelaida Physical Therapy, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51808(U))

Decided on December 19, 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
2015-608 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Maryana Feigen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 11, 2015. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124 are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124.

Plaintiff properly argues on appeal that defendant failed to establish, as a matter of law, its defense that the fees charged with respect to the services billed under codes CPT 97010, 97110 and 97124 exceeded the amounts set forth in the workers’ compensation fee schedule therefor (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate. [*2]Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services should have been denied.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124 are denied.

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