PAIN MEDICAL PLLC v. TRI STATE CONSUMER INSURANCE COMPANY (2022)

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. Defendant also sought summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule. Plaintiff opposed defendant's motion. By order entered January 12, 2019, the Civil Court denied the branches of defendant's motion seeking to dismiss so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule but granted the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that the services were not medically necessary.

As the order appealed from held that defendant was entitled to summary judgment dismissing all of the claims on the ground that all of the services were not medically necessary, defendant is not aggrieved by so much of the order as denied the branches of defendant's motion seeking summary judgment dismissing so much of the fifth and ninth causes of action as sought to recover in excess of the amounts permitted by the workers’ compensation fee schedule (see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 545 [1983]; Botie v Town of Babylon, 71 Misc 3d 1298[A], 2021 NY Slip Op 50234[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.