January 28, 2010

B.Y., M.D., P.C. v Government Empl. Ins. Co. (2010 NY Slip Op 20026)

Headnote

In this case, the plaintiff, a medical provider, was seeking to recover first-party no-fault benefits in a motion for "partial summary judgment." The defendant, an insurance company, opposed the motion arguing that there was a lack of medical necessity for the services at issue. The court denied the plaintiff's motion and the appeal followed. The main issue was whether the plaintiff was entitled to "partial summary judgment" to establish their prima facie case with respect to their first cause of action. The court held that the plaintiff was not entitled to "partial summary judgment" pursuant to CPLR 3212 (e) as the relief requested would not conclusively dispose of the merits of the first cause of action or even a part of it. Similarly, relief pursuant to CPLR 3212 (g) was not available to the plaintiff as the court did not deny, or grant in part, a motion which sought summary judgment conclusively disposing of the merits of the cause of action. Therefore, the order denying the plaintiff's motion was affirmed.

Reported in New York Official Reports at B.Y., M.D., P.C. v Government Empl. Ins. Co. (2010 NY Slip Op 20026)

B.Y., M.D., P.C. v Government Empls. Ins. Co.

2010 NY Slip Op 20026 [26 Misc 3d 95]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 14, 2010

[*1]

B.Y., M.D., P.C., et al., as Assignee of Beverly Prince, Appellants,
v
Government Employees Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, January 28, 2010

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**26 Misc 3d at 96} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for “partial summary judgment,” asserting that, pursuant to CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), the District Court should determine that plaintiffs had established their prima facie case with respect to their first cause of action. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The District Court denied plaintiffs’ motion, and this appeal by plaintiffs ensued.

Plaintiffs’ contention that, pursuant to either CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), they were entitled to “partial summary judgment” determining that they had established their prima facie case with respect to their first cause of action lacks merit. The branch of plaintiffs’ motion seeking “partial summary judgment” pursuant to CPLR 3212 (e) was properly denied as the relief requested would not conclusively dispose of the merits of plaintiffs’ first cause of action or even a part of that cause of action (see CPLR 3212 [e]).

Similarly, relief pursuant to CPLR 3212 (g) is not available to plaintiffs. This provision states that “[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible.” As the court did [*2]not deny, or grant in part, a motion which sought summary judgment conclusively disposing of the merits of plaintiffs’ cause of action, plaintiffs’ motion seeking a limitation of issues of fact for trial pursuant to CPLR 3212 (g) was properly denied (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:35; see generally E.B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599 [1984]). Accordingly, the order is affirmed.{**26 Misc 3d at 97}

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.