Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Geico Ins. Co. (2015 NY Slip Op 50396(U))
| Alleviation Med. Servs., P.C. v Geico Ins. Co. |
| 2015 NY Slip Op 50396(U) [47 Misc 3d 128(A)] |
| Decided on March 16, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2344 K C
against
Geico Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 20, 2012. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s unopposed motion for summary judgment. We affirm.
Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Thus, contrary to plaintiff’s argument on appeal, the Civil Court properly found that plaintiff had failed to establish its entitlement to summary judgment.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U))
| Cortland Med. Supply, P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50394(U) [47 Misc 3d 128(A)] |
| Decided on March 16, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2134 K C
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 26, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which, insofar as is relevant to this appeal, denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the Civil Court should have granted defendant’s motion for summary judgment.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50393(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Praetorian Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 17, 2012. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs, and, upon searching the record, summary judgment is awarded to defendant dismissing plaintiff’s first cause of action.
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. The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action and, with respect to plaintiff’s first cause of action, found that there was an issue of fact as to whether plaintiff had provided the verification which defendant had requested.
In support of the branch of its cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.
Plaintiff’s contention that it is entitled to summary judgment upon its first cause of action lacks merit. While defendant argued that it was entitled to summary judgment dismissing this cause of action because plaintiff had failed to provide requested verification, the Civil Court found that there was an issue of fact as to whether plaintiff had responded to defendant’s verification requests. However, we need not reach this issue since, as noted above, the record establishes that plaintiff’s assignor failed to appear for duly scheduled IMEs, and, thus, on that ground, defendant is likewise entitled to summary judgment dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720). As this appellate court has the power [*2]to search the record on this appeal by plaintiff and to award summary judgment to the nonappealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), upon searching the record, we award summary judgment to defendant dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720).
Accordingly, the order, insofar as appealed from, is affirmed and, upon a search of the record, summary judgment is awarded to defendant dismissing plaintiff’s first cause of action.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at Longevity Med. Supply, Inc. v Geico Ins. Co. (2015 NY Slip Op 50392(U))
| Longevity Med. Supply, Inc. v Geico Ins. Co. |
| 2015 NY Slip Op 50392(U) [47 Misc 3d 128(A)] |
| Decided on March 16, 2015 |
| 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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2096 Q C
against
Geico Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order 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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
On appeal, plaintiff argues that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and that, as a result, plaintiff’s motion for summary judgment should have been granted and defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled EUOs. Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at Rainbow Supply of NY, Inc. v Geico Gen. Ins. Co. (2015 NY Slip Op 50391(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Geico General Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 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 reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
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.
In support of its cross motion, defendant submitted two peer review reports, along with affidavits executed by the chiropractors who had performed the peer reviews, which set forth a factual basis and medical rationale for each reviewer’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at A.M. Med., P.C. v Continental Ins. Co. (2015 NY Slip Op 50389(U))
| A.M. Med., P.C. v Continental Ins. Co. |
| 2015 NY Slip Op 50389(U) [47 Misc 3d 128(A)] |
| Decided on March 16, 2015 |
| 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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1998 K C
against
Continental Insurance Co., Defendant, -and- ENCOMPASS INSURANCE COMPANY, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 11, 2011. The order denied a motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, with $30 costs, and the motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Encompass Insurance Company (Encompass) appeals from an order of the Civil Court which denied Encompass’s motion for summary judgment dismissing the complaint insofar as asserted against it.
A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As Encompass has established that the claim forms at issue were received by it on or before February 8, 2001, it correctly argues that plaintiff’s causes of action accrued on or before March 10, 2001, and, thus, this action, which was commenced in June 2007, is untimely (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
We reject plaintiff’s argument that Encompass was required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]).
Accordingly, the order is reversed and the motion by Encompass for summary judgment dismissing the complaint insofar as asserted against it is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
21st Century Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Thus, plaintiff failed to establish its entitlement to summary judgment, and its motion for summary judgment was properly denied.
The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim underlying plaintiff’s third cause of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant is not entitled to summary judgment dismissing plaintiff’s third cause of action.
In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s remaining causes of action, defendant submitted affidavits from a number of its employees. The affidavits set forth that envelopes containing the underlying NF-10 denial of claim forms were picked up by third-party mailing services to be taken to the post office. However, defendant failed to demonstrate the existence of a standard office practice and procedure utilized by the third-party mailing services so as to given rise to a presumption that the envelopes had been mailed (see Health Needles Acupuncture, P.C. v United Servs. Auto. Assn., 39 Misc 3d 134[A], 2013 NY Slip Op 50537[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant was not entitled to summary judgment dismissing plaintiff’s remaining causes of action.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
Reported in New York Official Reports at Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))
| Acupuncture, Approach, P.C. v Allstate Ins. Co. |
| 2015 NY Slip Op 50318(U) [46 Misc 3d 151(A)] |
| Decided on March 16, 2015 |
| Appellate Term, First 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 March 16, 2015
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570787/14
against
Allstate Insurance Company, Defendant-Appellant.
Defendant appeals from so much of an order the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 25, 2014, as denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Jennifer G. Schecter, J.), entered July 25, 2014, insofar as appealed from, affirmed, with $10 costs.
The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to satisfy its initial burden of establishing, prima facie, “that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: March 16, 2015
Reported in New York Official Reports at Top Choice Med., P.C. v Clarendon Natl. Ins. Co. (2015 NY Slip Op 50384(U))
| Top Choice Med., P.C. v Clarendon Natl. Ins. Co. |
| 2015 NY Slip Op 50384(U) [47 Misc 3d 130(A)] |
| Decided on March 12, 2015 |
| 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 March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2545 K C
against
Clarendon National Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated April 27, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s second cause of action.
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, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s second cause of action.
Defendant sufficiently established the timely mailing of the denial of claim form at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s second cause of action was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 12, 2015
Reported in New York Official Reports at Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50383(U))
| Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2015 NY Slip Op 50383(U) [47 Misc 3d 130(A)] |
| Decided on March 12, 2015 |
| 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 March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2477 K C
against
New York Central Mutual Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 10, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
We agree with plaintiff’s contention on appeal that the physician’s affirmation submitted by plaintiff in opposition to defendant’s motion was sufficient to demonstrate the existence of a triable issue of fact as to whether the services provided were medically necessary. Consequently, defendant’s motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]). We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 12, 2015