Jamaica Dedicated Med. Care, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51790(U))

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2011-192 K C

Thomas Torto, Esq., for appellant. Zara Javakov, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 15, 2010. The order, insofar as appealed from, 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s cross motion was based upon its assertions that it had properly reimbursed plaintiff for some of the services at issue in accordance with the workers’ compensation fee schedule and that it had timely denied reimbursement for the remaining services at issue due to a lack of medical necessity.

Upon a review of the record, we agree with the Civil Court’s determination that, as to the claims that were denied based upon a lack of medical necessity, there is a triable issue of fact regarding medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]). As to the claims that were denied on the ground that they had been properly paid pursuant to the workers’ compensation fee schedule, defendant failed to establish that defense as a matter of law (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

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

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.