From Queens Civil there is, Ave T MPC, Corp. v Progressive Ins. Co.,2007 NY Slip Op 51760(U)
and from the Appellate Term, 2nd:
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 2007 NYSlipOp 27371
While defendant asserted that plaintiff did not prove a prima facie case because
plaintiff, a provider of acupuncture services performed by a licensed acupuncturist, did not demonstrate that the fees it charged were within the prevailing fees for acupuncture services performed by a licensed acupuncturist in plaintiff’s geographic location (see 11 NYCRR 68.5 [b]), such contention lacks merit since plaintiff’s prima facie case does not require such a showing. Accordingly, the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).Defendant’s opposing papers also demonstrated that defendant denied reimbursement for the unpaid balance of the remaining 23 acupuncture sessions
conducted between February 9 and April 4, 2004, on the ground that the fees
charged by plaintiff exceeded the “maximum allowance under the applicable fee
schedule[s].” We agree that it was proper for defendant to use the Workers’
Compensation fee schedule for acupuncture services performed by chiropractors to
determine the amount to which plaintiff was entitled upon the subject 23 sessions (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]. Accordingly, there is no merit to plaintiff’s assertion that because the fees charged were reasonable and were within the range of prevailing fees for licensed acupuncturists in the geographic area in which plaintiff operated, defendant should have paid the entire amount for these 23 sessions (id.; see also Ops Gen Counsel NY Ins Dept 04-10-03).
PDG Psychological, P.C. v State Farm Mut. Ins. Co., 2007 NYSlipOp 51757(U)
We do not pass on the propriety of the determination of the court below that
plaintiff established its prima facie case, as defendant raises no issue with respect thereto. In opposition to plaintiff’s motion, defendant stated that plaintiff may be improperly licensed and, if so, plaintiff would be ineligible to receive reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant further asserted that while facts essential to justify opposition to plaintiff’s motion for summary judgment may exist, defendant was unable to set forth sufficient facts to establish this defense since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands (see CPLR 3212 [f]). Plaintiff made no attempt in its reply papers to refute defendant’s argument. Consequently, the branch of the order
which denied plaintiff’s [*3]motion for summary judgment is affirmed (see id.;
Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d
& 11th Jud Dists 2006]).
Lexington Acupuncture, P.C. v State Farm Ins. Co., 2007 NYSlipOp 51758(U)
Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is
warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its utterly inadequate response to defendant’s discovery demands, its failure to supplement or amend its responses after they were rejected by defendant, its failure to offer any response to defendant’s supplemental interrogatories and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.
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