GBI Acupuncture, P.C. v. GEICO Ins. Co.

Full title: GBI Acupuncture, P.C., as Assignee of Avery, Gregory, Appellant, v. GEICO…

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

Date published: Sep 22, 2017

2017 N.Y. Slip Op. 51237 (N.Y. App. Term 2017)

68 N.Y.S.3d 379

Opinion

2014-1535 Q C

09-22-2017

GBI Acupuncture, P.C., as Assignee of Avery, Gregory, Appellant, v. GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

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

PRESENT: :

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

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered May 5, 2014. The order, insofar as appealed from, denied plaintiff's motion for summary judgment, granted the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based on the workers' compensation fee schedule, and, upon denying the branches defendant's cross motion seeking summary judgment dismissing the remainder of the complaint, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely denials of the claims underlying that portion of the complaint.

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 plaintiff's motion for summary judgment, granted the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based on the workers' compensation fee schedule, and, upon denying the branches defendant's cross motion seeking summary judgment dismissing the remainder of the complaint, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely denials of the claims underlying that portion of the complaint.

Contrary to plaintiff's argument, defendant's proof established proper mailing of the denial of claim forms at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff's further argument regarding defendant's application of the workers' compensation fee schedule lacks merit (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 22, 2017