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Hong Tao Acupuncture, P.C. As Assignee of Jose Rosales v. Praetorian Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 10, 2012

HONG TAO ACUPUNCTURE, P.C. AS ASSIGNEE OF JOSE ROSALES,
RESPONDENT, --
v.
PRAETORIAN INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 21, 2010.

Hong Tao Acupuncture, P.C. v Praetorian Ins. Co.

Decided on April 10, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and granted the branch of plaintiff's cross motion seeking summary judgment on its claim for $150 for services rendered on September 6, 2007. So much of the appeal as is from the portions of the order that denied the branch of defendant's motion seeking summary judgment dismissing plaintiff's claim for $150 for services rendered on September 6, 2007 and granted the branch of plaintiff's cross motion seeking summary judgment with respect to that claim is deemed from a judgment of the same court entered March 9, 2010 awarding plaintiff the principal sum of $150 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff's cross motion seeking summary judgment with respect to plaintiff's claim for $150 for services rendered on September 6, 2007 is vacated, and said branch of plaintiff's cross motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for services rendered from October 5, 2007 through February 21, 2008 are 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 motion for summary judgment dismissing the complaint and granted the branch of plaintiff's cross motion seeking summary judgment upon its claim for $150 for services rendered on September 6, 2007. A judgment was subsequently entered, from which the appeal, in part, is deemed to have been taken (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, there is a triable issue of fact with respect to the timeliness of plaintiff's submission of the claim seeking reimbursement in the sum of $150 for services rendered on September 6, 2007 (see Insurance Department Regulations [11 NYCRR] § 65-1.1; New York & Presbyt. Hosp. v American Tr. Ins. Co., 45 AD3d 822 [2007]). Consequently, neither party was entitled to summary judgment on this claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

With respect to the remaining claims at issue, in support of its motion for summary judgment, defendant submitted, among other things, sworn and affirmed peer review reports, which set forth a factual basis and medical rationale for the opinions that there was a lack of medical necessity for the services set forth in these claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff failed to rebut defendant's prima facie showing of a lack of medical necessity.

In light of the foregoing and the Civil Court's finding that defendant timely denied the claims, a finding which plaintiff does not dispute, the branches of defendant's motion seeking summary judgment on the claims for services provided from October 5, 2007 through February 21, 2008 should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: April 10, 2012

20120410

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