Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(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 18, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find for all purposes in the action that plaintiff had established its prima facie case. ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find, for all purposes in the action, that plaintiff had established its prima facie case. On appeal, plaintiff contends that it demonstrated the existence of a triable issue of fact as to the medical necessity of the services rendered and that the court should have made a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

In opposition to defendant’s motion for summary judgment dismissing the complaint, [*2]plaintiff submitted an affirmation by a medical doctor which was sufficient to raise a triable issue of fact as to whether the services at issue were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). However, contrary to plaintiff’s further contention, plaintiff’s cross motion failed to establish plaintiff’s prima facie case because the affidavit submitted in support of the cross motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013