December 17, 2014

Cherkin v Praetorian Ins. Co. (2014 NY Slip Op 51828(U))

Headnote

The relevant facts considered by the court in this case were that Dr. Allen Cherkin was seeking to recover assigned first-party no-fault benefits from Praetorian Insurance Company. The insurance company had denied the claim, and argued that the denial was timely mailed. However, the court found that there was a triable issue of fact regarding the medical necessity of the services at issue, and therefore denied the insurance company's motion for summary judgment dismissing the complaint. The main issue decided was whether there was a triable issue of fact regarding the medical necessity of the services, and the holding of the court was that the denial of the claim forms were sufficiently established, but that there was indeed a triable issue of fact regarding the medical necessity. The court ultimately affirmed the order denying the insurance company's motion for summary judgment.

Reported in New York Official Reports at Cherkin v Praetorian Ins. Co. (2014 NY Slip Op 51828(U))

Cherkin v Praetorian Ins. Co. (2014 NY Slip Op 51828(U)) [*1]

Cherkin v Praetorian Ins. Co.

2014 NY Slip Op 51828(U) [46 Misc 3d 131(A)]

Decided on December 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1980 Q C

Dr. Allen Cherkin, D.C. as Assignee of DIANA OTTENWALDER, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 12, 2012. The order denied defendant’s 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established the timely mailing of the denial of claim forms (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, 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 is affirmed.

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

Decision Date: December 17, 2014