APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
January 14, 2011
NATURAL ACUPUNCTURE HEALTH, P.C. A/A/O DAVID ADAMS, NATURAL ACUPUNCTURE HEALTH, P.C. A/A/O DAVID ADAMS, NATURAL ACUPUNCTURE HEALTH, P.C. A/A/O DAVID ADAMS, NATURAL ACUPUNCTURE HEALTH, P.C. A/A/O DAVID ADAMS, SPRING MEDICAL, P.C. A/A/O DAVID ADAMS, SPRING MEDICAL, P.C. A/A/O DAVID ADAMS, SPRING MEDICAL, P.C. A/A/O DAVID ADAMS, RIGHT AID DIAGNOSTIC MEDICINE, P.C. A/A/O DAVID ADAMS, PLAINTIFFS-RESPONDENTS,
PRAETORIAN INSURANCE COMPANY, DEFENDANT-APPELLANT.
Natural Acupuncture Health, P.C. v Praetorian Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2011
PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
Defendant appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), dated April 6, 2010, which denied its motion for summary judgment dismissing the claims of plaintiffs Spring Medical, P.C. and Right Aid Diagnostic Medicine, P.C.
Order (Elizabeth A. Taylor, J.), dated April 6, 2010, insofar as appealed from, modified to grant defendant summary judgment dismissing the claims of plaintiff Spring Medical, P.C.; as modified, order affirmed, without costs.
Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff Spring Medical, P.C.'s claims for assigned first-party no-fault benefits. Defendant established through the affidavit of its claims examiner and excerpts from the Workers' Compensation Medical Fee Schedule, which may be judicially noticed by this Court (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 ), that the fees Spring charged for the medical services it rendered to the assignor exceeded the relevant rates set forth in the fee schedule. In opposition, Spring failed to raise a triable issue regarding defendant's interpretation of the fee schedule or calculation of the applicable fees. Therefore, defendant's motion for summary judgment dismissing Spring's claims -- which sought the difference between the amount Spring charged for the services and payments defendant made to Spring pursuant to the fee schedule -- should have been granted (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 ).
Defendant's motion for summary judgment dismissing the claim of plaintiff Right Aid Diagnostic Medicine, P.C. based on lack of medical necessity was properly denied, since defendant did not demonstrate as a matter of law that it timely denied the claim within the statutory 30-day period (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 , lv denied 93 NY2d 809 ) or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 ). We note in this connection that the reply affirmation submitted by Right Aid could not be considered for the purpose of showing a prima facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur Decision
Date: January 14, 2011
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