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) [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| This opinion is uncorrected and will not be published in the printed Official Reports.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
PRESENT: Shulman, P.J., Gonzalez, Cooper, JJ.
570657/17
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
Reported in New York Official Reports at Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C. (2018 NY Slip Op 03929)
| Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C. |
| 2018 NY Slip Op 03929 [162 AD3d 407] |
| June 5, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Country-Wide Insurance Company,
Appellant, v Bay Needle Care Acupuncture, P.C., as Assignee of Rosa Corona, Respondent. |
Thomas Torto, New York (Jason Levine of counsel), for appellant.
Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondent.
Judgment, Supreme Court, New York County (Joan M. Kenney, J.), entered February 23, 2017, in favor of respondent, unanimously affirmed, without costs, and the matter is remanded for a determination of respondent’s reasonable attorney’s fees for this appeal. Appeal from judgment entered February 14, 2017, unanimously dismissed, without costs, as superseded by the appeal from the February 23, 2017 judgment.
Respondent commenced an arbitration against petitioner seeking reimbursement of bills for health care services it had rendered to an individual injured in a motor vehicle accident. Petitioner asserted a Mallela defense (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), i.e., that it could withhold payment for the services because respondent was fraudulently incorporated. After a hearing, an arbitrator found that petitioner failed to meet its burden of providing clear and convincing evidence of fraudulent incorporation, and awarded respondent full reimbursement. The award was affirmed by the master arbitrator.
Petitioner argues that it was held to an incorrect standard of proof and that the correct standard is a preponderance of the evidence. However, the award is not subject to vacatur under either standard (see Country-Wide Ins. Co. v TC Acupuncture, P.C., 140 AD3d 643 [1st Dept 2016]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2d Dept 2017]). Petitioner failed to present any evidence that respondent was fraudulently incorporated.
We reject petitioner’s contention that the master arbitrator’s determination affirming the award was irrational because the arbitrator’s failure to set forth his reasons for rejecting petitioner’s Mallela defense precluded meaningful review of the award (see Matter of Guetta [Raxon Fabrics Corp.], 123 AD2d 40 [1st Dept 1987]; Matter of Nationwide Mut. Ins. Co. v Steiner, 227 AD2d 563 [2d Dept 1996]; see also Purpura v Bear Stearns Cos., 238 AD2d 216 [1st Dept 1997], lv denied 90 NY2d 806 [1997]). In any event, the master arbitrator’s determination, which considered the arbitrator’s familiarity with similar cases and past decisions on the issues presented, was rational.
Respondent is entitled to reasonable attorney’s fees for this appeal. Supreme Court has authority to award attorneys fees as this is an appeal from a master arbitration award pursuant to 11 NYCRR 65-4.10 (j) (4), which, in pertinent part, provides: “The attorney’s fee for services rendered in connection with . . . a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (see also Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017], recalling and vacating Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 139 AD3d 947 [2d Dept 2016]). Accordingly, we remand the matter to Supreme Court for a determination of respondent’s reasonable attorney’s [*2]fees for this appeal. To the extent Country-Wide Ins. Co. v Valdan Acupuncture, P.C. (150 AD3d 560, 561 [1st Dept 2017]) takes a different approach to calculating attorneys’ fees, we decline to follow it. Concur—Renwick, J.P., Manzanet-Daniels, Mazzarelli, Gesmer, Oing, JJ.
Reported in New York Official Reports at Country-Wide Ins. Co. v TC Acupuncture, P.C. (2018 NY Slip Op 50786(U))
against
TC Acupuncture, P.C., a/a/o Jims Calixte, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o William Dew, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o Debra Bond, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o Ernig Mejia, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
TC Acupuncture, P.C., a/a/o Johnny Sejour, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o William Dew, Respondent-Appellant.
Reported in New York Official Reports at Global Liberty Ins. Co. v New Century Acupuncture, P.C. (2018 NY Slip Op 03444)
| Global Liberty Ins. Co. v New Century Acupuncture, P.C. |
| 2018 NY Slip Op 03444 [161 AD3d 498] |
| May 10, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Global Liberty Insurance Company, Appellant, v New Century Acupuncture, P.C., Respondent, et al., Defendants. |
Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.
Order, Supreme Court, Bronx County (Ruben Franco, J.), entered December 8, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as against defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis, unanimously affirmed, without costs.
Plaintiff seeks a declaration of non-coverage based on the failure of defendant Davis, the injured claimant, to appear for two scheduled independent medical examinations (IMEs), which is a condition precedent to coverage (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1 [d]). Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required (see generally Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423 [1983]; cf. American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [1st Dept 2013]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.
Reported in New York Official Reports at Hereford Ins. Co. v Lida’s Med. Supply, Inc. (2018 NY Slip Op 03226)
| Hereford Ins. Co. v Lida’s Med. Supply, Inc. |
| 2018 NY Slip Op 03226 [161 AD3d 442] |
| May 3, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Hereford Insurance Company, Appellant, v Lida’s Medical Supply, Inc., et al., Respondents, et al., Defendants. |
Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for appellant.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 24, 2017, which denied plaintiff’s motion for summary judgment declaring that it has no obligation to pay the no-fault medical provider claims of defendants Lida’s Medical Supply, Inc. and American Kinetics Lab, Inc. with respect to the July 9, 2015 motor vehicle accident, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.
Plaintiff’s first cause of action is for a declaratory judgment that it did not owe a duty to pay no-fault claims because the underlying claimants failed to appear for independent medical examinations (IMEs). While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.
When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage” (Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1). Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.
Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-425 [1st Dept 2013]). Concur—Richter, J.P., Gesmer, Oing, Singh, Moulton, JJ.
Reported in New York Official Reports at Allstate Ins. Co. v Longevity Med. Supply, Inc. (2018 NY Slip Op 50238(U))
| Allstate Ins. Co. v Longevity Med. Supply, Inc. |
| 2018 NY Slip Op 50238(U) [58 Misc 3d 158(A)] |
| Decided on February 22, 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 February 22, 2018
PRESENT: Shulman, P.J., Gonzalez, Cooper, JJ.
570783/17
against
Longevity Medical Supply, Inc., a/a/o Tessa Barton, Respondent-Respondent.
Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered on or about December 14, 2016, which denied its petition to vacate a master arbitration award in favor of respondent, awarding it unpaid no-fault benefits in the principal sum of $1,080.00 and attorney’s fees, and confirmed the master arbitration award.
Per Curiam.
Order and judgment (Erika M. Edwards, J.), entered on or about December 14, 2016, affirmed, with $25 costs.
Petitioner-insurer failed to demonstrate a ground pursuant to CPLR 7511 to vacate the master arbitrator’s award. There was a rational basis, based on the no-fault regulations, for the master arbitrator’s finding that respondent-medical provider’s proof was sufficient to establish that (1) it responded to the verification demands sent by petitioner, and (2) that petitioner was therefore required, but failed, to rebut the presumption of receipt of the verification, or show that it timely acted upon receipt by paying or denying the claim, or seeking further verification. The master arbitrator’s legal analysis of the arbitrator’s determination was well within the scope of her authority to review and correct an error of law made by the arbitrator (see 11 NYCRR 65-4.10[a][4]; Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). Applying the law to a given set of facts is well within the province of a master arbitrator, even if the master arbitrator’s conclusion differs from that of the arbitrator (see Martinez v Metropolitan Prop. & Liab. Ins. Co., 146 AD2d 610 [1989]).
We have considered petitioner’s remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: February 22, 2018
Reported in New York Official Reports at Unitrin Advantage Ins. Co. v 21st Century Pharm. (2018 NY Slip Op 00813)
| Unitrin Advantage Ins. Co. v 21st Century Pharm. |
| 2018 NY Slip Op 00813 [158 AD3d 450] |
| February 6, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Unitrin Advantage Insurance Company,
Appellant, v 21st Century Pharmacy, Also Known as 21st Century Pharmacy Inc., et al., Respondents. |
Rubin, Fiorella & Friedman LLP, New York (Aaron F. Fishbein of counsel), for appellant.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment against certain defendants (defaulting defendants) on its first and/or second causes of action for a declaratory judgment, unanimously modified, on the law and the facts, to grant the motion as to defendants 21st Century Pharmacy a/k/a 21st Century Pharmacy Inc.; Advanced Orthopedics and Joint Preservation P.C.; Angelic Physical Therapy P.C.; BMJ Chiropractic, P.C.; Coney Island Medical Practice a/k/a Coney Island Medical Practice Plan, P.C.; Dana Woolfson LMT; Electrophysiologic Medical Diagnostics, P.C.; Excel Surgery Center, L.L.C.; Franklin Hospital; GC Chiropractic P.C.; Hamza Physical Therapy PLLC; LLJ Therapeutic Services, P.T. P.C.; Master Cheng Acupuncture P.C.; Metropolitan Medical & Surgical P.C.; Noel Blackman Physician, P.C.; North Shore LIJ Health System a/k/a North Shore LIJ Medical PC; Ortho-Med Equip Inc.; Patchogue Open MRI, P.C. d/b/a Southwest Radiology; Quality Health Family Medical Care a/k/a Quality Health Family Medical Care P.C.; Quality Medical & Surgical Supplies, L.L.C. a/k/a Quality Medical Surgical Supplies LLC; Ralph Innovative Medical, P.C.; RM Physical Therapy, P.C.; Total Psychiatric Medical Services, P.C.; Megastar Medical, P.C.; Michele Glispy, LAC; Layne Negrin, LMT; Ruby Galope, PT; and Patrick Masson, and to declare that such defendants have no right to no-fault benefits from plaintiff with respect to a September 19, 2014 motor vehicle accident, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Plaintiff established its entitlement to a default judgment against the defaulting defendants (see CPLR 3215 [f]) except for defendant Anio Pierriseme, for whom no affidavit of nonmilitary service appears in the record (see Avgush v De La Cruz, 30 Misc 3d 133[A], 2011 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:16). Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Reported in New York Official Reports at Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810)
| Unitrin Advantage Ins. Co. v All of NY, Inc. |
| 2018 NY Slip Op 00810 [158 AD3d 449] |
| February 6, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Unitrin Advantage Insurance Company,
Respondent, v All of NY, Inc., et al., Defendants, and Andrew J. Dowd, M.D., Appellant. |
Law Offices of Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for appellant.
Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.
Order and judgment (one paper) of the Supreme Court, New York County (Debra A. James, J.), entered January 5, 2016, which granted plaintiff Unitrin Advantage Insurance Company’s (Unitrin) motion for summary judgment and declared that it had no duty to pay no-fault benefits to defendant Andrew J. Dowd, M.D., in connection with the subject April 16, 2013 collision, unanimously modified, on the law, to deny summary judgment and vacate the declaration as to the May 15, 2013, May 22, 2013, and May 31, 2013 dates of medical services, and otherwise affirmed, without costs.
Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5 (b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.
Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).
The final claim, for date of medical services June 12, 2013, bill received on July 10, 2013, was timely and properly denied. Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Reported in New York Official Reports at Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50080(U))
| Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co. |
| 2018 NY Slip Op 50080(U) [58 Misc 3d 149(A)] |
| Decided on January 24, 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 January 24, 2018
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570688/17
against
Ocean Harbor Casualty Insurance Co., Defendant-Appellant.
Defendant appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated May 9, 2017, which, upon renewal, adhered to a prior order denying its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Debra Rose Samuels, J.), dated May 9, 2017, insofar as appealed from, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida Law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v Infinity Ins. Co., 2017 NY Slip Op 50332[U]).
In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v Infinity Ins. Co., 2016 NY Slip Op 50391[U]).
We have considered plaintiff’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 24, 2018
Reported in New York Official Reports at Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))
| Lotus Acupuncture PC v Hereford Ins. Co. |
| 2018 NY Slip Op 50057(U) [58 Misc 3d 148(A)] |
| Decided on January 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 January 18, 2018
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570400/17
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered August 29, 2014, which granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.
Per Curiam.
Order (Jose A. Padilla, Jr., J.) entered August 29, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the governing fee schedule (see Healthy Way Accupucture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). The new arguments raised in defendant’s reply papers, even if properly considered (cf. Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]) failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]), and, in any event, revealed additional matters in dispute.
We have considered the parties’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 18, 2018