August 6, 2015

GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U))

Headnote

The case involved a dispute over first-party no-fault benefits between GBI Acupuncture, P.C., as Assignee of EARLLYNDA WHITTAKER-THOMPSON, and 21st Century Insurance Company. GBI Acupuncture sought to recover assigned first-party no-fault benefits, but the Civil Court denied their motion for summary judgment and granted 21st Century Insurance's cross motion for summary judgment dismissing the complaint. 21st Century Insurance submitted affidavits that established the timely mailing of the denial of claim forms and the proper use of the workers' compensation fee schedule to determine the amount owed to GBI Acupuncture. As a result, the court found that GBI Acupuncture's papers failed to raise a triable issue of fact in opposition to 21st Century Insurance's cross motion, and therefore affirmed the denial of GBI Acupuncture's motion and granted 21st Century Insurance's cross motion.

Reported in New York Official Reports at GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U))

GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U)) [*1]

GBI Acupuncture, P.C. v 21st Century Ins. Co.

2015 NY Slip Op 51235(U) [48 Misc 3d 140(A)]

Decided on August 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-249 Q C

GBI Acupuncture, P.C. as Assignee of EARLLYNDA WHITTAKER-THOMPSON, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 19, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.Contrary to plaintiff’s arguments on appeal, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (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]). Furthermore, the affidavit executed by defendant’s certified professional coder established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s papers failed to raise a triable issue of fact in opposition to defendant’s cross motion. Consequently, the Civil Court properly denied plaintiff’s motion and granted defendant’s cross motion.

Accordingly, the order is affirmed.

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

Decision Date: August 06, 2015