September 22, 2017

GBI Acupuncture, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51237(U))

Headnote

The court considered an appeal from an order of the Civil Court denying a provider's motion for summary judgment to recover first-party no-fault benefits. The court also looked at a cross motion seeking summary judgment by the defendant to dismiss some of the claims based on the workers' compensation fee schedule. The main issue decided was whether the denial of claim forms were properly mailed by the defendant, and whether the defendant's application of the workers' compensation fee schedule was valid. The holding of the case was that the defendant had established the timely denials of the claims underlying that portion of the complaint, and the court affirmed the order in favor of the defendant.

Reported in New York Official Reports at GBI Acupuncture, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51237(U))

GBI Acupuncture, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51237(U)) [*1]

GBI Acupuncture, P.C. v GEICO Ins. Co.

2017 NY Slip Op 51237(U) [57 Misc 3d 132(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1535 Q C

GBI Acupuncture, P.C., as Assignee of Avery, Gregory, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered May 5, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based on the workers’ compensation fee schedule, and, upon denying the branches defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely denials of the claims underlying that portion of the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based on the workers’ compensation fee schedule, and, upon denying the branches defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely denials of the claims underlying that portion of the complaint.

Contrary to plaintiff’s argument, defendant’s proof established proper mailing of the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. [*2]Co., 50 AD3d 1123 [2008]). Plaintiff’s further argument regarding defendant’s application of the workers’ compensation fee schedule lacks merit (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017