December 24, 2012

Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))

Headnote

The court considered the action brought by Devonshire Surgical Facility, LLC seeking recovery of assigned first-party no-fault benefits. The main issues considered were whether the amounts of the timely denied claims properly reflected plaintiff's status as a surgical facility or were in excess of the rates set forth in the governing fee schedule, as well as the admissibility of the affidavit of defendant's adjuster. The court held that the action was not ripe for summary disposition, as there were several triable issues raised in the record. The court also noted that the new arguments raised in plaintiff's reply papers failed to eliminate all triable issues of fact, and therefore denied the cross motion for summary judgment on the complaint.

Reported in New York Official Reports at Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))

Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U)) [*1]

Devonshire Surgical Facility, LLC v Allstate Ins. Co.

2012 NY Slip Op 52351(U) [38 Misc 3d 127]

Decided on December 24, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570727/12.

Devonshire Surgical Facility, LLC, a/a/o Nancy Rodriguez, Plaintiff-Appellant, – –
against
Allstate Insurance Company, Defendant-Respondent.

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered March 28, 2012, which denied its cross motion for summary judgment on the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), entered March 28, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The record raises several triable issues, including whether the amounts of the timely denied claims properly reflected plaintiff’s apparent status as a surgical facility or were otherwise in excess of the rates set forth in the governing fee schedule (see MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). Plaintiff waived any purported defect in the affidavit of defendant’s adjuster by failing to contest its admissibility (see Akamnonu v Rodriguez, 12 AD3d 187 [2004]). The new arguments raised in plaintiff’s reply papers, even if properly considered (cf. Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]), failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur.
Decision Date: December 24, 2012