New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
September 13, 2012
YING EASTERN ACUPUNCTURE, P.C. AS ASSIGNEE OF LATOYA WYCHE-IRABOR, RESPONDENT, --
GEICO INS. CO., APPELLANT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), dated April 25, 2007.
Ying E. Acupuncture, P.C. v GEICO Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ
The order granted plaintiff's motion for summary judgment.
ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault
benefits, defendant appeals from an order of the Civil Court which
granted plaintiff's motion for summary judgment. In opposition to
plaintiff's motion, defendant submitted an affidavit by its claims
division employee which sufficiently established the timely mailing of
the denial of claim forms (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]). The claims were denied on the ground that the claims exceeded the
amount permitted by the workers' compensation fee schedule, and that defendant had fully paid
plaintiff for the services billed for in accordance with the workers' compensation fee schedule for
acupuncture services performed by chiropractors. An affidavit by another of defendant's claims division
employees established that defendant had properly used the workers' compensation fee schedule for acupuncture
services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue
(see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the
order is reversed and plaintiff's motion for summary judgment is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: September 13, 2012
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