October 12, 2011

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51856(U))

Headnote

The main issue in this case was whether the defendant, GEICO General Insurance Co., was entitled to summary judgment dismissing the complaint brought by the plaintiff, AVA Acupuncture, P.C. as Assignee of EGBUNIKE CHINWE and STEPHEN OSAGIEDE, to recover assigned first-party no-fault benefits. The court considered the timely mailing of claim denial forms by the defendant and the use of workers' compensation fee schedule for acupuncture services in determining the amount owed to the plaintiff. The court held that the defendant's motion for summary judgment should have been granted, as it had properly used the fee schedule for the services rendered and had paid the plaintiff the full amount they were entitled to prior to the commencement of the action. The plaintiff's remaining arguments were not considered by the court as they were raised for the first time on appeal. Therefore, the court reversed the order and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51856(U))

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51856(U)) [*1]

AVA Acupuncture, P.C. v GEICO Gen. Ins. o.

2011 NY Slip Op 51856(U) [33 Misc 3d 129(A)]

Decided on October 12, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-880 K C.

AVA Acupuncture, P.C. as Assignee of EGBUNIKE CHINWE and STEPHEN OSAGIEDE, Respondent,
against
GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 9, 2007. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s 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 from so much of an order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit of an employee of its claims division which, contrary to plaintiff’s contention, sufficiently established that the claim denial forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit further established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services rendered (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant, prior to the commencement of this action, paid plaintiff the full amount to which plaintiff was entitled, defendant’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff’s remaining arguments [*2]are not properly before this court since they are raised for the first time on appeal.

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

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 2011