September 8, 2017

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51138(U))

Headnote

The court considered a case where Compas Medical, P.C. was seeking to recover first-party no-fault benefits that had been assigned to them. American Transit Ins. Co. filed a motion for summary judgment to dismiss the complaint, which was granted by the Civil Court. Compas Medical, P.C. appealed the decision, and the Appellate Term, Second Department found that there was sufficient proof that American Transit Ins. Co. had not received the claim form for the first cause of action, so that part of the motion to dismiss was upheld. However, the Appellate Term found that American Transit Ins. Co. did not establish as a matter of law that the fees charged by Compas Medical, P.C. exceeded the amounts allowed by the workers' compensation fee schedule. Therefore, the branch of the motion seeking summary judgment dismissing the second cause of action was denied, and the order was modified accordingly.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51138(U))

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51138(U)) [*1]

Compas Med., P.C. v American Tr. Ins. Co.

2017 NY Slip Op 51138(U) [57 Misc 3d 126(A)]

Decided on September 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 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
2014-1534 Q C

Compas Medical, P.C., as Assignee of Akhtar, Waseem, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s sole contention on appeal with the respect to the first cause of action, the proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form underlying that cause of action. Consequently, there is no basis to disturb so much of the order as granted the branch of defendant’s motion seeking summary judgment dismissing the first cause of action (see Artzel, Inc. v Mercury Cas. [*2]Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51437[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

However, plaintiff correctly argues that defendant’s motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff for the claims underlying the second cause of action exceeded the amounts permitted by the workers’ compensation fee schedule.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017