I. Papers The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint: Papers Numbered Defendant’s Notice of Motion and Affirmation in Support dated January 6, 2020 (“Motion”) and file stamped by the court on January 9, 2020. 1 II. Background In a summons and complaint filed May 21, 2018, Plaintiff sued Defendant insurance company to recover a total of $1194.17 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Hernandez, plus attorneys’ fees and statutory interest (see Motion, Aff. of Rita, Ex. 4). Alleging four (4) separate claims, Plaintiff sought to recover $308.36 for services provided on May 24, 2017; $119.19 and $291.62 for services provided on June 7, 2017, and $475.00 for services provided on June 21, 2017. On December 29, 2017, Defendant commenced an action against Plaintiff in Supreme Court, Nassau County, seeking a judgment declaring Plaintiff had no right to receive No Fault benefit payments because Plaintiff failed to appear for examinations under oath (“EUO”) for a number of claims on a list appended to the complaint as Exhibit 1 thereto (see Motion, Rita Aff., Ex.5). Upon Plaintiff’s failure to appear at an inquest scheduled for April 4, 2019, Nassau Supreme Court (“Supreme Court”), in an order entered July 29, 2019 (“July 29 Order”), found that Plaintiff breached a condition precedent to No Fault coverage by failing to attend properly scheduled EUOs and that Defendant properly denied Plaintiff’s claims listed on Exhibit 1 thereto on that ground. The court held that Defendant had “no obligation to pay any of the no-fault claims” (Motion, Rita Aff., Ex 6 at 3) (State Farm Mut. Auto. Ins. Co. v. Tandigan P.T., P.C., Sup. Ct. Nassau County, July 24, 2019, S., J., Index No. 614172/17). In our instant matter, Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the July 29 Order precluded Plaintiff’s claims in this action or that Plaintiff’s claims were timely paid according to the applicable fee schedule. Plaintiff did not oppose Defendant’s motion. III. Discussion and Decision CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v. Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d at 968). As to Plaintiff’s claims of $119.19 and $291.62 for services provided on June 7, 2017, as well as $475.00 for services provided on June 21, 2017, Defendant argued that those claims were barred by the July 29 Order. Res judicata precludes a party from litigating a “a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Matter of Josey v. Goord, 9 NY3d 386, 389 [2007]). Res judicata would bar claims that were not actually litigated, but could have been raised (Matter of Hunter, 4 NY3d at 269), even if based on different theories and seeking different remedies (Simmons v. Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v. Goord, 9 NY3d at 390; Matter of Hunter, 4 NY3d at 269; Specialized Realty Servs., LLC v. Maikisch, 123 AD3d 801, 802 [2d Dept 2014]; Parolisi v. Slavin, 98 AD3d 488, 189 [2d Dept 2012]). In our instant matter, the list of claims appended to the Supreme Court complaint as Exhibit 1 thereto included the claims Plaintiff now sought to recover in the amounts of $119.19, $291.62, and $475.00 for services provided in June 2017, but did not list Plaintiff’s present claim in our instant case for $308.36. Therefore, since the claims for services provided in June 2017 are barred by the Supreme Court’s determination in the July 29 Order, this Court grants Defendant’s summary judgment motion and dismisses those claims in Plaintiff’s complaint in the respective amount of $119.19, $291.62, and $475.00 (K.O. Med., P.C. v. Mercury Cas. Co., 57 Misc 3d 155[A], 2017 NY Slip Op 51614[U] *2 [App Term 2d Dept 2017]; Metro Health Prods., Inc. v. Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Active Care Med. Supply Corp. v. American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] * 2 [App Term 2d Dept 2016]). Regarding Plaintiff’s claim for $308.36 for the service provided on May 24, 2017, automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law §5102[a]; Government Empls. Ins. Co. v. Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law §5108 (Insurance Law §5102[a]; Government Empls. Ins. Co. v. Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law §5108[a]; Government Empls. Ins. Co. v. Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law §5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v. Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]). Here, Plaintiff’s claim for $308.36 was based on Defendant’s payment of only $166.64 of Plaintiff’s bill in the amount of $475.00, which Defendant received on July 7, 2017. Defendant argued that Plaintiff’s claim for $475.00 exceeded the applicable fee schedules and that $166.64 was the proper allowed amount for the billed services. Although the court may take judicial notice of the fee schedules, they do not independently establish whether they were correctly applied (Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v. Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U] * 1-2 [App Term 2d Dept 2017]). In our instant matter, Defendant supported its Motion with an affidavit dated December 19, 2019, in which Tavares, a certified professional coder, concluded that the amount Plaintiff billed for the medical services on May 24, 2017, should have been $166.64 based on the applicable fee schedules because Plaintiff applied an incorrect code for the services provided (see Motion, Rita Aff., Ex. 3 at 2-3). Tavares’ affidavit satisfied Defendant’s obligation to present an expert to interpret the fee schedule (Oleg’s Acupuncture, P.C. v. Hereford Ins. Co., 2018 NY Slip Op 50095[U] *1; Jaga Med. Servs., P.C. v. American Tr. Ins. Co., 56 Misc 3d 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]; GBI Acupuncture, P.C. v. 21st Century Ins. Co., 48 Misc 3d 140[A], 2015 NY Slip Op 51235[U] *1 [App Term 2d Dept 2015]; see Gentle Acupuncture, P.C. v. Tri-State Consumer Ins. Co., 55 Misc 3d 147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]). Defendant also presented the affidavit sworn December 12, 2019 of O’Neill, Defendant’s Claim Specialist (see Motion, Rita Aff., Ex. 1), copies of a check dated August 30, 2017 issued to Plaintiff in the amount of $169.31, a denial of claim form dated August 30, 2017, acknowledging receipt of Plaintiff’s claim in the amount of $475.00 on July 7, 2017 and denying $308.36 of that claim because it exceeded applicable fee schedules, and an explanation of review dated August 30, 2017 approving payment of $169.31 ($166.64 plus $2.67 in interest) of Plaintiff’s total claim of $475.00 (see Motion, Rita Aff., Ex. A). Defendant’s admissible evidence demonstrated timely payment of Plaintiff’s claim in accordance with the applicable fee schedule (Natural Therapy Acupunture, P.C. v. American Tr. Ins. Co., 51 Misc 3d 129[A], 2016 NY Slip Op 50389[U] *1 [App Term 2d Dept 2016]). Here, Defendant has established its prima facia case by admissible evidence and is also entitled to summary judgment dismissing Plaintiff’s claim in the amount of $308.36 for services provided May 24, 2017. IV. Order Accordingly, it is ORDERED that Defendant’s motion for summary judgment is granted and that Plaintiff’s complaint is dismissed; and it is further ORDERED that the Part Clerk is directed to mark the index number disposed for all purposes This constitutes the DECISION and ORDER of the Court. Dated: September 16, 2021
