Opinion
2016–950 K C
01-19-2018
OLEG'S ACUPUNCTURE, P.C., as Assignee of Alex Swan, Respondent, v. HEREFORD INSURANCE CO., Appellant.
Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for respondent.
Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for appellant.
Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich, Esq.), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the judgment is reversed, with $30 costs, the order entered January 27, 2016 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of two claims for services that plaintiff rendered from May 7, 2014 through July 16, 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in excess of the amounts permitted by the workers' compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff's motion, and denied defendant's cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff's claims.
As defendant argues, 11 NYCRR 65–3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, "no payment shall be due for [ ] claimed medical services under any circumstances ... for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers." Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65–3.8 [g] [1] [ii]; [2] ).
Accordingly, the judgment is reversed, the order entered January 27, 2016 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.