November 1, 2019

Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))

Headnote

The court considered the denial of claim forms that had been presumed to be timely mailed by the defendant, as well as the full payment made by the defendant to the plaintiff for services in accordance with workers' compensation fee schedules. The main issue decided was whether the defendant's cross motion for summary judgment dismissing the complaint should be granted. The holding of the court was that the defendant's cross motion for summary judgment dismissing the complaint was granted. The court found that the proof submitted by the defendant was sufficient to give rise to a presumption that the denial of claim forms had been timely mailed, and that the plaintiff had failed to raise a triable issue of fact in opposition. As a result, the court reversed the order and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))

Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U)) [*1]

Acupuncture Now, P.C. v Global Liberty Ins.

2019 NY Slip Op 51796(U) [65 Misc 3d 146(A)]

Decided on November 1, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-962 K C

Acupuncture Now, P.C., as Assignee of Lozano, Cleotilde, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 22, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also 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 Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition.

In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019