December 17, 2014

EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U))

Headnote

The main issue in the case is whether the supplies at issue were medically necessary, as the defendant had denied the claims on the basis of a lack of medical necessity. The court considered the evidence presented by both parties and determined that there was a triable issue of fact regarding the medical necessity of the services at issue. Therefore, the court held that the defendant's cross motion for summary judgment dismissing the complaint is denied. The order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint was modified to provide that defendant's cross motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U))

EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U)) [*1]

EMC Health Prods., Inc. v Praetorian Ins. Co.

2014 NY Slip Op 51806(U) [46 Misc 3d 129(A)]

Decided on December 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1049 K C

EMC Health Products, INC. as Assignee of RONALD LOUIS, Appellant,
against
Praetorian Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the supplies at issue were not medically necessary.

Defendant’s papers established that it had timely denied the claims at issue (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]) based on a lack of medical necessity. However, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: December 17, 2014