June 18, 2018

Karina K. Acupuncture, P.C. v Phoenix Ins. Co. (2018 NY Slip Op 50913(U))

Headnote

The court considered the fact that the defendant timely and properly denied the plaintiff's no-fault claims for acupuncture needle reinsertion services based on the assignor's sworn statement denying that such services were performed. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint. The court held that the defendant was entitled to summary judgment dismissing the claims, as the plaintiff's proof, consisting of an attorney's affirmation, was insufficient to raise a triable issue as to whether the needle reinsertions were actually performed. Additionally, it was undisputed that the plaintiff did not fully respond to the defendant's verification request, therefore the thirty-day period to pay or deny the claims did not begin to run, making the remaining claims not overdue and the plaintiff's action on those claims premature.

Reported in New York Official Reports at Karina K. Acupuncture, P.C. v Phoenix Ins. Co. (2018 NY Slip Op 50913(U))

Karina K. Acupuncture, P.C. v Phoenix Ins. Co. (2018 NY Slip Op 50913(U)) [*1]

Karina K. Acupuncture, P.C. v Phoenix Ins. Co.

2018 NY Slip Op 50913(U) [60 Misc 3d 126(A)]

Decided on June 18, 2018

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2018

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Cooper, JJ.
570657/17

Karina K. Acupuncture, P.C., a/a/o Keith Boothe, Plaintiff-Appellant,
against
Phoenix Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered September 30, 2015, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (David B. Cohen, J.), entered September 30, 2015, affirmed, with $10 costs.

Defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims for acupuncture needle reinsertion services by demonstrating that it timely and properly denied the claims based on the assignor’s sworn statement denying that such services were performed upon him. In opposition, plaintiff’s proof, essentially consisting of an attorney’s affirmation, was insufficient to raise a triable issue as to whether the needle reinsertions were actually performed.

Defendant was also entitled to summary judgment dismissing the balance of plaintiff’s claims. Since it is undisputed that plaintiff did not fully respond to defendant’s verification request, the thirty-day period to pay or deny the claims did not begin to run. Thus, the remaining claims were not overdue and plaintiff’s action on those claims is premature (see e.g. St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]).

We have considered plaintiff’s remaining arguments and find them unpersuasive.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 18, 2018