Compas Med., P.C. v. Am. Transit Ins. Co.

Full title: Compas Medical, P.C., as Assignee of Fabre, Jean Patrick, Appellant, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Jul 21, 2017

2017 N.Y. Slip Op. 50946 (N.Y. App. Term 2017)

63 N.Y.S.3d 304

Opinion

2014-1173 Q C

07-21-2017

Compas Medical, P.C., as Assignee of Fabre, Jean Patrick, Appellant, v. American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ

PRESENT: :

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered April 23, 2014. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment on the first through fourth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff's motion seeking summary judgment on its first through fourth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.

Contrary to plaintiff's contention, defendant demonstrated that it had not received the requested verification and, thus, that plaintiff's fourth cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Furthermore, the affidavit executed by defendant's professional coder established that defendant had properly used the workers' compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in the second and third causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). To the extent plaintiff asserts that defendant failed to establish that payment of the amount at issue in the first cause of action had been timely mailed, such argument will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). As plaintiff failed to demonstrate the existence of a triable issue of fact with respect to the second through fourth causes of action, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: July 21, 2017