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Natural Therapy Acupuncture, P.C. As Assignee of Jean Charles, Respondent v. Interboro Insurance Company

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


July 13, 2012

NATURAL THERAPY ACUPUNCTURE, P.C. AS ASSIGNEE OF JEAN CHARLES, RESPONDENT, --
v.
INTERBORO INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 17, 2010.

Natural Therapy Acupuncture, P.C. v Interboro Ins. Co.

Decided on July 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and ALIOTTA, JJ

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

ORDERED that the order is reversed, without costs, and defendant's 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 an order of the Civil Court denying defendant's unopposed motion for summary judgment dismissing the complaint.

The affidavit by defendant's claims representative established that the denial of claim forms at issue had been timely mailed (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]). With respect to plaintiff's first cause of action, defendant demonstrated that plaintiff's assignor's insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant timely denied $200 of the claim form at issue in the first cause of action due to said deductible (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As to the remaining unpaid portions of the claim form at issue in the first cause of action, defendant demonstrated that the amounts sought by plaintiff exceeded the amounts permitted by the workers' compensation fee schedule and that defendant had fully paid plaintiff for the services billed for in accordance with the fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

As to plaintiff's third and fourth causes of action, defendant likewise demonstrated that it had fully paid plaintiff for the services billed for in accordance with the fee schedule (id.). Although the denial of claim forms offered by defendant in support of its motion did not include every page of these forms, the forms sufficiently apprised plaintiff "with a high degree of specificity of the ground or grounds on which the [denials were] predicated" (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]) and the omitted pages "did not pose any possibility of confusion or prejudice to . . . [plaintiff] under the circumstances" (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011]).

With respect to plaintiff's second cause of action, the affidavit by defendant's claims representative contained more than a mere conclusory denial of receipt of the claim form allegedly mailed to it (cf. Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and sufficiently established that defendant had not received that claim form (see Matter of Government Empls. Ins. Co. v Morris, __ AD3d __, 2012 NY Slip Op 03448 [2012]).

In the absence of a sworn statement by someone with personal knowledge attesting to plaintiff's submission of the claim form at issue in the second cause of action, defendant was entitled to summary judgment dismissing the second cause of action as well (see Fiveborough Chiropractic & Acupuncture, PLLC v American Employers' Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists 2009]; cf. Top Choice Med., P.C., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: July 13, 2012

20120713

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