March 11, 2014

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))

Headnote

The court considered the timely mailing of the denial of claim form and conflicting medical expert opinions in the case of Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. The main issue was whether there was a lack of medical necessity for the services provided, and whether the defendant's motion for summary judgment should be denied based on this conflicting evidence. The court held that the conflicting medical expert opinions were sufficient to demonstrate the existence of a triable issue of fact, so the defendant's motion for summary judgment was properly denied.

Reported in New York Official Reports at Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U)) [*1]

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50418(U) [42 Misc 3d 150(A)]

Decided on March 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JFJ.

Advanced Orthopedics, PLLC as Assignee of LOUCKENS OLIVIER, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 6, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services provided. Consequently, defendant’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

2012-838 Q C., concur.
Decision Date: March 11, 2014