Mind & Body Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co.

Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50603(U)) [*1] Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. 2022 NY Slip Op 50603(U) [75 Misc 3d 141(A)] Decided on June 17, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 17, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2019-1418 K C Mind & Body Acupuncture, P.C., as Assignee of Wilson, Bernadette, Respondent, against State Farm Mutual Automobile Ins. Co., Appellant. James F. Butler & Associates (Mohammad Rubbani of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated April 4, 2019. The order, insofar as appealed from, upon reargument, adhered to that court's prior determination in so much of an order entered March 19, 2019 as denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and, upon reargument, defendant's motion for summary judgment dismissing the complaint is 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, upon reargument, adhered to that court's prior determination in so much of an order entered March 19, 2019 as denied defendant's motion for summary judgment dismissing the complaint. In support of its motion, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by demonstrating that it had fully paid plaintiff for the acupuncture services at issue in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors (see S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 68 Misc 3d 132[A], 2020 NY Slip Op 51004[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]) and that the subject claims sought the difference between the amount plaintiff charged for the services rendered and the payments made. In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact (see Master Cheng Acupuncture, P.C. v Global Liberty Ins. of NY, 69 Misc 3d 143[A], 2020 NY Slip Op 51371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 2020 NY Slip Op 51004[U]; cf. Global Liberty Ins. Co. of NY v Acupuncture Now, P.C., 178 AD3d 512 [2019]). Accordingly, the order, insofar as appealed from, is reversed and, upon reargument, [*2]defendant's motion for summary judgment dismissing the complaint is granted. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 17, 2022