August 8, 2014

Bernhard J. Sengstock, D.C., P.C. v GEICO (2014 NY Slip Op 51266(U))

Headnote

A provider sued for assigned first-party no-fault benefits, and the insurer cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims for lack of medical necessity. The Civil Court denied the provider's summary judgment motion, made CPLR 3212(g) findings in the provider's favor, denied the insurer's cross motion, and held that medical necessity was the only remaining issue for trial. The Appellate Term found that the insurer failed to articulate a sufficient basis to strike the 3212(g) findings. It also found a triable issue of fact on medical necessity, and the order was affirmed.

Reported in New York Official Reports at Bernhard J. Sengstock, D.C., P.C. v GEICO (2014 NY Slip Op 51266(U))

[*1]
Bernhard J. Sengstock, D.C., P.C. v GEICO
2014 NY Slip Op 51266(U) [44 Misc 3d 139(A)]
Decided on August 8, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-1224 Q C

Bernhard J. Sengstock, D.C., P.C. as Assignee of MARIE-ANNE ALLONCE, Respondent,

against

GEICO, Appellant.


Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered April 12, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Moreover, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.


Decision Date: August 08, 2014