EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 13, 2012. The order, insofar as appealed from and as limited by the brief, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

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, insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, limiting the issues for trial to medical necessity.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007] Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). Defendant also argues, in effect, that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued denials that were untimely or were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010] Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). However, this is an incorrect reading of the order (see Avicenna Med. Arts, P.L.L.C. v GEICO Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52010[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Had the court found, for example, that plaintiff had established that it was incontrovertible, for all purposes in the action, that defendant’s denials were without merit as a matter of law, the court would have granted summary judgment to plaintiff. Instead, the order directed that a trial be held. Consequently, regardless of the wording of the order, it is clear that it was not the court’s intent to find that plaintiff had established, for all purposes in the action, that defendant had issued denials that were untimely or were conclusory, vague, or without merit as a matter of law.

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

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