December 17, 2014

Market St. Surgical Ctr. v Praetorian Ins. Co. (2014 NY Slip Op 51804(U))

Headnote

The court considered the motion for summary judgment by the defendant to dismiss the complaint, based on a lack of medical necessity for the claims in question. The Civil Court denied the defendant's motion and limited the issue for trial to medical necessity. The main issue decided was whether the defendant had sufficient basis to strike the Civil Court's implicit findings in favor of the plaintiff and whether there was a triable issue of fact regarding the medical necessity of the services at issue. The holding of the case was that the order, insofar as appealed from, was affirmed, with the court finding that there was a triable issue of fact regarding the medical necessity of the services at issue.

Reported in New York Official Reports at Market St. Surgical Ctr. v Praetorian Ins. Co. (2014 NY Slip Op 51804(U))

Market St. Surgical Ctr. v Praetorian Ins. Co. (2014 NY Slip Op 51804(U)) [*1]

Market St. Surgical Ctr. v Praetorian Ins. Co.

2014 NY Slip Op 51804(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-928 K C

Market Street Surgical Center as Assignee of EVELYN MICHELE, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 22, 2012. The order, insofar as appealed from, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s motion for summary judgment dismissing the complaint and limited the issue for trial to medical necessity.

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 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. The Civil Court denied defendant’s motion and limited the issue for trial to medical necessity.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Moreover, 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 (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014