Gutierrez v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50379(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 2, 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.

Plaintiff’s main argument on appeal with respect to defendant’s cross motion is that defendant failed to demonstrate that it had properly reduced the sum billed for CPT code 20553 from $4,000 to $645.90 pursuant to the workers’ compensation fee schedule. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to demonstrate, prima facie, that Ground Rule 3 and Ground Rule 5 were appropriately applied to the services billed, and that defendant properly applied CPT code 20552 in order to determine the amount due, which it calculated to be $592.07. Defendant’s employee explained that defendant had mistakenly paid $645.90 for 21 trigger point injections rather than $592.07 for the 20 injections for which plaintiff had billed. In any event, it is of no relevance to the determination of this appeal that defendant paid an additional $53.83 as a result of this mistake, or that it has described a potential alternate calculation which, had defendant used it, would have concluded that only $416.85 was due. Defendant has demonstrated that it paid more than it was responsible for pursuant to the workers’ compensation fee schedule, and plaintiff has not rebutted that showing. Contrary to plaintiff’s second argument on appeal with respect to defendant’s cross motion—that defendant’s proffered defense was not set forth in its denial—a checked box on the denial of claim form indicated that benefits were denied because the fees were not in accordance with the fee schedule, and the denial referenced an attached “Explanation of Review.”

In view of the foregoing, defendant’s cross motion for summary judgment dismissing the complaint was properly granted and plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is affirmed.

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