Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jiminez Salta, J.), entered March 30, 2011.
Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.
Decided on February 19, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 SOLOMON, JJ
The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment is denied; as so modified, the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Contrary to plaintiff's argument on appeal, defendant's denial of claim forms were sufficient to preserve defendant's fee schedule defense (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, there are triable issues of fact as to whether defendant has fully paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule. Consequently, on this record, summary judgment in favor of defendant is not warranted (see generally Zuckerman v City of New York, 49 NY2d 557 ).
Accordingly, the order is modified by providing that defendant's motion for summary judgment is denied.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February ...