| Healing Art Acupuncture, P.C. v Maya Assur. Co. |
| 2015 NY Slip Op 50387(U) [47 Misc 3d 130(A)] |
| Decided on March 13, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 31, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled, and thus, that plaintiff's assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing plaintiff's second and third causes of action which seek to recover upon claims which defendant denied on the ground that plaintiff's assignor had failed to appear at duly scheduled IMEs.
With respect to plaintiff's first cause of action, which seeks to recover the unpaid portion of a claim which defendant denied on the ground that it exceeded the amount set forth in the workers' compensation fee schedule, we find that defendant failed to establish as a matter of law that the fee charged exceeded the amount set forth in the workers' compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and, therefore, it was not entitled to summary judgment on this cause of action.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.