Opinion
No. 2010–2963 K C.
2012-06-28
OLGA BARD ACUPUNCTURE, P.C. as Assignee of March Othneil, Respondent, v. GEICO INS. CO., Appellant.
Present: WESTON, J.P., PESCE and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 8, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.
ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.
The affidavits submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely denied ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 A.D.3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322 [App Term, 2d & 11th Jud Dists 2007] ) plaintiff's claims at issue, based upon the workers' compensation fee schedule, and that defendant had fully paid plaintiff for the claims for acupuncture services billed under CPT codes 97810 and 97811, in accordance with the workers' compensation fee schedule ( see Great Wall Acupuncture, P.C. v. GEICO Ins. Co., 26 Misc.3d 23, 893 N.Y.S.2d 420 [App Term, 2d, 11th & 13th Jud Dists 2009] ).
Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff's motion seeking summary judgment upon plaintiff's first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's second and third causes of action and so much of plaintiff's first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.