| Natural Acupuncture Health, P.C. v Praetorian Ins. Co. |
| 2011 NY Slip Op 50040(U) [30 Misc 3d 132(A)] |
| Decided on January 14, 2011 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from those portions of an order of the Civil Court of the City of New
York, Bronx County (Elizabeth A. Taylor, J.), dated April 6, 2010, which denied its motion for
summary judgment dismissing the claims of plaintiffs Spring Medical, P.C. and Right Aid
Diagnostic Medicine, P.C. Per Curiam.
Order (Elizabeth A. Taylor, J.), dated April 6, 2010, insofar as appealed from, modified to grant defendant summary judgment dismissing the claims of plaintiff Spring Medical, P.C.; as modified, order affirmed, without costs.
Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff Spring Medical, P.C.'s claims for assigned first-party no-fault benefits. Defendant established through the affidavit of its claims examiner and excerpts from the Workers' Compensation Medical Fee Schedule, which may be judicially noticed by this Court (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), that the fees Spring charged for the medical services it rendered to the assignor exceeded the relevant rates set forth in the fee schedule. In opposition, Spring failed to raise a triable issue regarding [*2]defendant's interpretation of the fee schedule or calculation of the applicable fees. Therefore, defendant's motion for summary judgment dismissing Spring's claims — which sought the difference between the amount Spring charged for the services and payments defendant made to Spring pursuant to the fee schedule — should have been granted (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [2009]).
Defendant's motion for summary judgment dismissing the claim of plaintiff Right Aid
Diagnostic Medicine, P.C. based on lack of medical necessity was properly denied, since
defendant did not demonstrate as a matter of law that it timely denied the claim within the
statutory 30-day period (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999],
lv denied 93 NY2d 809 [1999]) or that the 30-day period was tolled by a proper
verification request (see Nyack Hosp. v
Encompass Ins. Co., 23 AD3d 535 [2005]). We note in this connection that the reply
affirmation submitted by Right Aid could not be considered for the purpose of showing a prima
facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: January 14, 2011