May 22, 2014

Promed Durable Equip., Inc. v GEICO Ins. (2014 NY Slip Op 50872(U))

Headnote

The court considered the motion for summary judgment made by the plaintiff to recover assigned first-party no-fault benefits, as well as the cross-motion for summary judgment made by the defendant to dismiss the complaint on the grounds of a lack of medical necessity. The main issue decided was whether the supplies at issue were medically necessary, and the court held that the only remaining issue for trial was medical necessity. The court affirmed the denial of the plaintiff's motion for summary judgment and the denial of the defendant's cross motion, finding that there was a triable issue of fact as to whether the supplies were medically necessary. The court also found that the defendant failed to articulate a sufficient basis to strike the Civil Court's implicit findings in the plaintiff's favor.

Reported in New York Official Reports at Promed Durable Equip., Inc. v GEICO Ins. (2014 NY Slip Op 50872(U))

Promed Durable Equip., Inc. v GEICO Ins. (2014 NY Slip Op 50872(U)) [*1]

Promed Durable Equip., Inc. v GEICO Ins.

2014 NY Slip Op 50872(U) [43 Misc 3d 143(A)]

Decided on May 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-95 K C

Promed Durable Equipment, Inc. as Assignee of KEISHA DIAZ, Respondent,
against
GEICO Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 24, 2011. 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 claim 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.

Defendant fails to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). In support of its cross motion, defendant submitted an affirmed report from a peer review doctor and an affidavit from a peer review chiropractor, both of which set forth a factual basis and medical rationale for the determinations that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (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: May 22, 2014