LMS Acupuncture, P.C. v Geico Ins. Co. (2014 NY Slip Op 50416(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 21, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80.02 for date of service August 2, 2010, found for all purposes in the action that plaintiff had established its prima facie case with respect to the remaining claims and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon plaintiff’s claim for $80.02 for date of service August 2, 2010, are granted; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to defendant.

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. The Civil Court granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80.02 for date of service August 2, 2010, finding that plaintiff’s prima facie showing with respect thereto was not opposed in defendant’s papers, and further found for all purposes in the action that plaintiff had established its prima facie case with respect to the remaining causes of action. The Civil Court denied defendant’s cross motion for summary judgment dismissing the complaint, but found that defendant had established that it had timely denied plaintiff’s remaining claims and that the sole issue for trial was defendant’s defense that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. ( ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Inasmuch as defendant raises no other issue with respect to plaintiff’s claim seeking $80.02 for services rendered on August 2, 2010, there is no basis to disturb so much of the order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover on that claim.

With respect to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services 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]). In opposition, plaintiff relied [*2]upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon plaintiff’s claim for $80.02 for date of service August 2, 2010, are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014