November 20, 2015

Natural Therapy Acupuncture, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51713(U))

Headnote

The court considered whether a provider was entitled to recover first-party no-fault benefits, and whether the insurance company had properly paid for the services at issue according to the workers' compensation fee schedule. The main issue was whether the denial of the claim form had been timely mailed and if the insurance company had fully paid the provider for the services at issue. The court held that the insurance company had established that the denial of the claim form had been timely mailed, and that it had fully paid the provider for the services at issue in accordance with the workers' compensation fee schedule. The court declined to consider the provider's remaining contention, as it was being raised for the first time on appeal, and affirmed the lower court's decision.

Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51713(U))

Natural Therapy Acupuncture, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51713(U)) [*1]

Natural Therapy Acupuncture, P.C. v Travelers Ins. Co.

2015 NY Slip Op 51713(U) [49 Misc 3d 149(A)]

Decided on November 20, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-851 K C

Natural Therapy Acupuncture, P.C. as Assignee of FATIMA DEAN, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 29, 2012. 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, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible, it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant’s motion should have been denied.

Contrary to plaintiff’s contention, defendant established that the denial of claim form at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 20, 2015