May 18, 2015

Xvv, Inc. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50791(U))

Headnote

The relevant facts considered in this case were that Xvv, Inc. was seeking to recover assigned first-party no-fault benefits as the assignee of Jerome Barrow from New York Central Mutual Fire Insurance Company. The main issue decided was whether there was a lack of medical necessity for the supplies provided, which was the ground for the defendant's motion seeking summary judgment to dismiss the complaint. The holding of the case was that there was a triable issue of fact as to whether there was a lack of medical necessity for the supplies provided, and as a result, the defendant's motion was properly denied. The order was affirmed, and the decision was made on May 18, 2015.

Reported in New York Official Reports at Xvv, Inc. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50791(U))

Xvv, Inc. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50791(U)) [*1]

Xvv, Inc. v New York Cent. Mut. Fire Ins. Co.

2015 NY Slip Op 50791(U) [47 Misc 3d 151(A)]

Decided on May 18, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-833 K C

XVV, Inc. as Assignee of JEROME BARROW, Respondent, –
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 1, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of a lack of medical necessity.

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, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of a lack of medical necessity.

On this record, there is a triable issue of fact as to whether there was a lack of medical necessity for the supplies provided. Consequently, the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s complaint on the ground of a lack of medical necessity was properly denied (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 18, 2015