Opinion
570400/17
01-18-2018
LOTUS ACUPUNCTURE PC a/a/o, Plaintiff–Appellant, v. HEREFORD INS. CO., Defendant–Respondent.
Order (Jose A. Padilla, Jr., J.) entered August 29, 2014, modified to deny defendant's motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the governing fee schedule (see Healthy Way Accupucture, P.C. v Clarendon Natl. Ins. Co. , 55 Misc 3d 127[A], 2017 NY Slip Op. 50345[U] [App Term, 1st Dept 2017] ; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011] ). The new arguments raised in defendant's reply papers, even if properly considered (cf. Rozina v Casa 74th Dev. LLC , 89 AD3d 508 [2011] ) failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ; Devonshire Surgical Facility, LLC v Allstate Ins. Co. , 38 Misc 3d 127[A], 2012 NY Slip Op. 52351[U] [App Term, 1st Dept 2012] ), and, in any event, revealed additional matters in dispute.
We have considered the parties' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.