|Liberty Chiropractic, P.C. v 21st Century Ins. Co.|
|2016 NY Slip Op 51409(U) [53 Misc 3d 133(A)]|
|Decided on September 27, 2016|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 21, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's 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 from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff properly argues on appeal that defendant failed to establish its defense, that the fees charged exceeded the amounts set forth in the workers' compensation fee schedule, as a matter of law (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). For example, defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate. In addition, defendant sought to demonstrate that plaintiff was not entitled to any payment for services rendered by plaintiff on specific dates because defendant had already paid another provider, Harvard Medical, P.C., for eight units of physical medicine procedures and/or modalities, the full number of units permitted by Physical Medicine Ground Rule 11, for each of those dates. However, the documents relied upon by defendant were attached to the motion papers without authentication, foundation or even discussion. Even if we were to take the documents at face value, they show only that Harvard Medical, P.C. had billed for a total of three units for each of the applicable dates.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.