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Apple Tree Acupuncture, P.C. As Assignee of Roman Gordiyenko, Appellant v. Allstate Ins. Co.

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


March 15, 2013

APPLE TREE ACUPUNCTURE, P.C. AS ASSIGNEE OF ROMAN GORDIYENKO, APPELLANT, --
v.
ALLSTATE INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 26, 2010.

Apple Tree Acupuncture, P.C. v Allstate 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2013

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

The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint. The appeal from the order is deemed to be from a judgment of the same court entered November 3, 2010 dismissing the action (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 26, 2010 as granted defendant's cross motion for summary judgment dismissing the complaint is vacated and defendant's cross motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In Great Wall Acupuncture, P.C. v Geico Ins. Co. (26 Misc 3d 23, 24-25 [App Term, 2d, 11th & 13th Jud Dists 2009]), this court held: "an insurer may use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services . . . Consequently, since it is undisputed that the instant defendant reimbursed plaintiff pursuant to the workers' compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement."

In the instant case, defendant failed to establish, as a matter of law, that the amount it had paid plaintiff was the maximum amount permitted by the workers' compensation fee schedule for acupuncture services rendered by a chiropractor and that defendant had properly denied the remaining portion of each of the claims at issue. As a result, defendant failed to demonstrate its prima facie entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated and defendant's cross motion for summary judgment dismissing the complaint is denied.

Rios, J.P., Pesce and Aliotta, JJ., concur. Decision Date: March 15, 2013

20130315

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