Opinion
No. 570727/12.
2012-12-24
DEVONSHIRE SURGICAL FACILITY, LLC, a/a/o Nancy Rodriguez, Plaintiff–Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant–Respondent.
Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered March 28, 2012, which denied its cross motion for summary judgment on the complaint.
Present: SCHOENFELD, J.P., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (Margaret A. Chan, J.), entered March 28, 2012, affirmed, with $10 costs.
The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The record raises several triable issues, including whether the amounts of the timely denied claims properly reflected plaintiff's apparent status as a surgical facility or were otherwise in excess of the rates set forth in the governing fee schedule ( see MIA Acupuncture, P.C. v. Praetorian Ins. Co., 35 Misc.3d 69 [2011] ). Plaintiff waived any purported defect in the affidavit of defendant's adjuster by failing to contest its admissibility ( see Akamnonu v. Rodriguez, 12 AD3d 187 [2004] ). The new arguments raised in plaintiff's reply papers, even if properly considered ( cf. Henry v. Peguero, 72 AD3d 600, 602 [2010],appeal dismissed15 NY3d 820 [2010] ), failed to eliminate all triable issues of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.