J.C. Healing Touch Rehab, P.C. v Eveready Ins. Co. (2014 NY Slip Op 50774(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 (Pamela L. Fisher, J.), entered October 31, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was whether the verification requested by defendant was outstanding.

For the reasons stated in EMC Health Prods., Inc. as Assignee of Brian Byers v Geico Ins. Co. (___ Misc 3d ___, 2014 NY Slip Op _____ [Appeal No. 2012-1208 K C], decided herewith), we find that defendant failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor. Moreover, upon a review of the record, we find that the Civil Court correctly found that there is a triable issue of fact as to whether the verification requested by defendant was outstanding (see Westchester Med. Ctr. v A Cent. Ins. Co., 114 AD3d 937 [2014] Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]).

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

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