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Liu Yong, Acupuncture As Assignee of Angela Garcia v. Metropolitan Property and Casualty Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


December 23, 2011

LIU YONG, ACUPUNCTURE AS ASSIGNEE OF ANGELA GARCIA,
APPELLANT,
v.
METROPOLITAN PROPERTY AND CASUALTY INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered November 30, 2009.

Liu Yong, Acupuncture v Metropolitan Prop. & Cas. Ins. Co.

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the October 4, 2005 claim (for services rendered from September 6 through September 29, 2005) is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint.

The affidavit of defendant's litigation representative established that, except for the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff's October 4, 2005 claim (for services rendered from September 6 through September 29, 2005), defendant had timely denied plaintiff's claims (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the unpaid portion exceeded the amount permitted by the workers' compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the billed-for services in accordance with the workers' compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted so much of defendant's motion for summary judgment as sought dismissal of the claims other than plaintiff's October 4, 2005 claim.

Since defendant failed to establish the timely mailing of the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff's October 4, 2005 claim, defendant was not entitled to summary judgment upon this claim.

In light of the foregoing, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the October 4, 2005 claim is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

Decision Date: December 23, 2011

20111223

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