Opinion
No. 2011–1299 K C.
2013-02-19
SHARA ACUPUNCTURE, P.C. as Assignee of Luz Marie Mendez, Appellant, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jiminez Salta, J.), entered March 30, 2011. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
ORDERED that the order is modified by providing that defendant's motion for summary judgment is denied; as so modified, the order is affirmed, with $25 costs.
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 and denied plaintiff's cross motion for summary judgment.
Contrary to plaintiff's argument on appeal, defendant's denial of claim forms were sufficient to preserve defendant's fee schedule defense ( see Arco Med. NY, P.C. v. Lancer Ins. Co., 37 Misc.3d 136[A], 2012 N.Y. Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012] ). However, there are triable issues of fact as to whether defendant has fully paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule. Consequently, on this record, summary judgment in favor of defendant is not warranted ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Accordingly, the order is modified by providing that defendant's motion for summary judgment is denied.