Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51670(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 22, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, upon a search of the record, granted partial summary judgment to defendant dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009.

ORDERED that the order, insofar as appealed from, is modified by striking the provision granting partial summary judgment to defendant dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it had timely denied plaintiff’s claims on the grounds of lack of medical necessity and that the amount charged exceeded the amount permitted by the workers’ compensation fee schedule. By order entered February 22, 2013, the Civil Court denied plaintiff’s motion for summary judgment, but held that pursuant to CPLR 3212 (g), plaintiff and defendant had established their prima facie cases and that the sole issue for trial would be the propriety of defendant’s defense which was based upon the workers’ compensation fee schedule. The Civil Court also, upon searching the record, held that plaintiff had failed to rebut defendant’s independent medical examination report which defendant had annexed to its papers in opposition to plaintiff’s motion for summary judgment and awarded defendant partial summary judgment dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009. Plaintiff appeals.

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the complaint insofar as it sought to recover for services rendered after November 20, 2009 (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852 [App Term, 2d & 11th Jud Dists 2008]).

Plaintiff’s remaining contentions are not properly before this court, as these arguments are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision granting partial summary judgment to defendant dismissing so much of the complaint as sought [*2]to recover for services rendered after November 20, 2009.

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