Opinion
2008-1638 K C.
Decided on October 23, 2009.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 30, 2008. 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.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff established its prima facie entitlement to summary judgment ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co. , 5 AD3d 742 ; Art of Healing Medicine, P.C. v Travelers Home Mar. Ins. Co. , 55 AD3d 644 ; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]). The burden then shifted to defendant to raise a triable issue of fact ( see Zuckerman v City of New York, 49 NY2d 557).
Contrary to plaintiff's contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant's standard office practices and procedures ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 , 1124; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d 11th Jud Dists 2007]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. ( 16 Misc 3d 23 [App Term, 2d 11th Jud Dists 2007]), it was proper for defendant to use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive ( see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. , 17 Misc 3d 41 [App Term, 2d 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and plaintiff's motion for summary judgment should have been denied.
We decline defendant's request that we search the record and grant defendant summary judgment ( see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. , 39 AD3d 832 ).
Pesce, P.J., Weston and Rios, JJ., concur.