MASTER CHENG ACUPUNCTURE v. GLOBAL LIBERTY INS OF NY (2020)

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 15, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff's claims for services rendered April 17, 2014 through May 12, 2014 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied its motion for summary judgment dismissing the complaint.

With respect to the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff's claims for services rendered April 17, 2014 through May 12, 2014, which claims defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers' compensation fee schedule, defendant's proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers' compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact with respect to this branch of defendant's motion.

Upon a review of the record, we agree with the Civil Court's determination that there is a triable issue of fact regarding the medical necessity of the services rendered on May 23, 2014 (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff's claims for services rendered April 17, 2014 through May 12, 2014 is granted.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.