July 28, 2011

Ozone Park Chiropractic v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51453(U))

Headnote

The relevant facts considered in this case involve a provider seeking first-party no-fault benefits from an insurance company. The insurance company moved for summary judgment to dismiss the complaint, claiming that some of the claims were denied based on a lack of medical necessity for the services rendered. The provider submitted an affidavit from the treating chiropractor in opposition to the motion. The main issue decided by the court was whether there was a triable issue of fact as to the claims that were denied based on a lack of medical necessity. The holding of the court was that the affidavit of the provider's treating chiropractor raised a triable issue of fact in opposition to the insurance company's prima facie showing, thus affirming the denial of the insurance company's motion for summary judgment.

Reported in New York Official Reports at Ozone Park Chiropractic v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51453(U))

Ozone Park Chiropractic v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51453(U)) [*1]

Ozone Park Chiropractic v Clarendon Natl. Ins. Co.

2011 NY Slip Op 51453(U) [32 Misc 3d 134(A)]

Decided on July 28, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-593 Q C.

Ozone Park Chiropractic as Assignee of Alexander Rodriguez, Respondent,
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 11, 2010. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint as to claims that were denied based upon a lack of medical necessity for the services rendered.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. In opposition to defendant’s motion, plaintiff submitted, among other things, an affidavit executed by the treating chiropractor. The Civil Court granted defendant’s motion as to some of the claims at issue, and denied defendant’s motion as to claims that were denied based upon a lack of medical necessity for the services rendered, finding a triable issue of fact as to those claims. Defendant appeals from the partial denial of its motion for summary judgment.

Inasmuch as the affidavit of plaintiff’s treating provider raised a triable issue of fact in opposition to defendant’s prima facie showing, the order, insofar as appealed from, is affirmed (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011