June 14, 2024

Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U))

Headnote

The court considered a case where a medical provider, as the assignee of a patient, sought to recover no-fault insurance benefits from Mid-Century Insurance Company. The main issues involved whether the insurance company had appropriately demonstrated that the policy limits were exhausted and if the provider was barred from recovering based on the fee schedule. The court found that the defendant's payment log did not meet the necessary evidentiary standards to prove that payments had been made to the provider for the claims in question. However, the court noted that the plaintiff's argument regarding the fee schedule was not preserved for appeal since it was raised for the first time on appeal. Ultimately, the order granting summary judgment in favor of the defendant was affirmed.

Reported in New York Official Reports at Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U))

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Pak Hong Sik, MD, Medi. Care, P.C. v Mid-Century Ins. Co.

2024 NY Slip Op 50804(U) [83 Misc 3d 130(A)]

Decided on June 14, 2024

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2024

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

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-647 RI C

Pak Hong Sik, MD, Medical Care, P.C., as Assignee of Israel Perez, Jr., Appellant,

against

Mid-Century Insurance Company, Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered May 22, 2023. The order granted defendant’s 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 (Mary A. Kavanagh, J.) which granted defendant’s motion for summary judgment dismissing the complaint on the grounds that the policy limits had been exhausted and that, pursuant to the fee schedule, the provider could not recover upon the bills at issue.

Plaintiff correctly argues that defendant failed to lay a sufficient foundation for the payment log, upon which defendant relied, to prove that the payments to plaintiff listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 81 Misc 3d 145[A], 2024 NY Slip Op 50203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). To the extent plaintiff argues on appeal that defendant also failed to establish that, pursuant to the fee schedule, plaintiff could not recover upon the bills at issue, such argument was improperly raised for the first time on appeal (see Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646 [2022]; Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and we do not consider it.

Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2024