September 19, 2016

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U))

Headnote

The court considered the fact that defendant timely denied plaintiff's no-fault claims on the grounds that the fees for the acupuncture services exceeded the amount permitted by the worker's compensation fee schedule. The main issue decided was whether the defendant's motion for summary judgment dismissing the complaint should be granted, and the court held that it should. The court found that the defendant's evidence established that they timely denied the claims, and plaintiff failed to raise a triable issue regarding the efficacy of the denial or the calculation of the fee. Therefore, the defendant's motion for summary judgment dismissing the claim was granted.

Reported in New York Official Reports at Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U))

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U)) [*1]

Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y.

2016 NY Slip Op 51302(U) [53 Misc 3d 126(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570162/16

Urban Well Acupuncture, P.C., a/a/o Zunilda Perez, Plaintiff-Respondent,
against
Erie Insurance Company of New York, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered March 12, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Paul A. Goetz, J.), entered March 12, 2015, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s no-fault claims on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept. 2009]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee pertaining to these claims. Therefore, defendant’s motion for summary judgment dismissing the claim — which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule — should have been granted.

Plaintiff’s remaining arguments are either unpreserved or lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: September 19, 2016