August 23, 2012

Village Chiropractic v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51640(U))

Headnote

The court considered the denial of the defendant's motion for summary judgment in a case where a provider was seeking to recover assigned first-party no-fault benefits. The main issue decided was whether there was a triable issue of fact as to the medical necessity of the services at issue, based on the affidavit of the plaintiff's treating chiropractor. The court held that there was indeed a triable issue of fact, and therefore denied the defendant's motion for summary judgment. Additionally, the court found that the award of motion costs to the plaintiff was not an improper exercise of discretion. Therefore, the order denying the defendant's motion for summary judgment was affirmed by the court.

Reported in New York Official Reports at Village Chiropractic v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51640(U))

Village Chiropractic v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51640(U)) [*1]

Village Chiropractic v Clarendon Natl. Ins. Co.

2012 NY Slip Op 51640(U) [36 Misc 3d 147(A)]

Decided on August 23, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1725 Q C.

Village Chiropractic as Assignee of VIVIAN A. NICHOLAS, Respondent, —
against
Clarendon National Insurance Company Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered May 12, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and awarded motion costs to plaintiff.

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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint and awarded motion costs to plaintiff.

As the affidavit of plaintiff’s treating chiropractor demonstrated the existence of a triable issue of fact as to the medical necessity of the services at issue, we find no basis to disturb so much of the order as denied defendant’s motion for summary judgment (see Ozone Park Chiropractic v Clarendon Natl. Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51453[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). We further find that the award of motion costs to plaintiff was not an improper exercise of discretion (CPLR 8106; CCA 1903; see Babikian v [*2]Nikki Midtown, LLC, 60 AD3d 470 [2009]; Greenspan v Rockefeller Ctr. Mgt. Corp., 268 AD2d 236 [2000]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 2012