SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
June 14, 2011
GENTLE CARE ACUPUNCTURE, P.C. AS ASSIGNEE OF RUDRANATH MOHAN,
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered September 25, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied defendant's cross motion for summary judgment dismissing the complaint.
Gentle Care Acupuncture, P.C. v GEICO
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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2011
PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.
The affidavit of defendant's claims division employee was sufficient
to establish that the denial of claim forms had been timely mailed in
accordance with defendant's standard office practices and procedures
(see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50
AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of
Ins., 17 Misc 3d 16 [App Term, 2d
& 11th Jud Dists 2007]). Moreover, for the reasons stated in Great Wall Acupuncture, P.C. v Geico Ins. Co.
(26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers'
compensation fee schedule for acupuncture services performed by chiropractors to determine the amount
which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Since
defendant fully paid plaintiff the amount to which plaintiff was entitled, defendant's cross motion for summary
judgment dismissing the complaint should have been granted.
Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011
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