Opinion
No. 2007–1156 K C.
2012-09-13
YING EASTERN ACUPUNCTURE, P.C. as Assignee of Latoya Wyche–Irabor, Respondent, v. GEICO INS. CO., Appellant.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), dated April 25, 2007. The order granted plaintiff's motion for summary judgment.
ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment. In opposition to plaintiff's motion, defendant submitted an affidavit by its claims division employee which sufficiently established the timely mailing of the denial of claim forms ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). The claims were denied on the ground that the claims exceeded the amount permitted by the workers' compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors. An affidavit by another of defendant's claims division employees established that defendant had properly used the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue ( see Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc.3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009] ). Accordingly, the order is reversed and plaintiff's motion for summary judgment is denied.