September 19, 2016

TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51358(U))

Headnote

The relevant facts considered by the court were that the appellant, TAM Medical Supply Corp., was seeking to recover first-party no-fault benefits from the respondent, 21st Century Insurance Company. The respondent had moved for summary judgment, arguing that they had fully paid the appellant for the supplies at issue in accordance with the workers' compensation fee schedule, and the Civil Court had granted this motion. The main issue decided was whether the fees charged by the appellant exceeded the amounts set forth in the workers' compensation fee schedule. The court found that the respondent's motion papers failed to establish, as a matter of law, that the fees charged by the appellant exceeded the amounts set forth in the schedule, and therefore the respondent was not entitled to summary judgment. The holding of the case was that the appellate court reversed the lower court's decision and denied the respondent's motion for summary judgment, meaning that the appellant could continue to pursue their claim for first-party no-fault benefits.

Reported in New York Official Reports at TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51358(U))

TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51358(U)) [*1]

TAM Med. Supply Corp. v 21st Century Ins. Co.

2016 NY Slip Op 51358(U) [53 Misc 3d 129(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2566 Q C

TAM Medical Supply Corp., as Assignee of CASSANDRA AMBROISSE, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 18, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the supplies at issue in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion.

Plaintiff correctly argues on appeal that defendant’s motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant was not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 19, 2016