Opinion
No. 13–453.
2014-09-16
EPIC PAIN MANAGEMENT & ANESTHESIA CONSULTANTS, LLC, a/a/o Pierre Souffrant, Plaintiff–Appellant, v. NEW YORK CENTRAL MUTUAL FIRE INS. CO., Defendant–Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered July 29, 2013, which granted defendant's motion for summary judgment dismissing the complaint.
Present LOWE, III, P.J., SCHOENFELD, SHULMAN, JJ. PER CURIAM.
Order (Mitchell J. Danziger, J.), entered July 29, 2013, reversed, with $10 costs, motion denied and complaint reinstated.
The action, seeking recovery of assigned first-party no-fault benefits arising from a series of epidural injections administered by plaintiff in its Hackensack, New Jersey office, is not ripe for summary dismissal. Defendant's moving submission below relied exclusively on a worker's compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” Notably absent from defendant's moving papers was any discussion of the proper “geographic location” of the plaintiff provider—which apparently maintains offices in both New York and New Jersey—or of the “prevailing fee” were such location determined to be in New Jersey. Defendant's attempts to rectify these deficiencies in its reply papers below were untimely ( see e.g. Ambac Assur. Corp. v. DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [2012] ) and, even if defendant's newly raised arguments were considered, they create rather than eliminate genuine triable issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.