May 29, 2014

Pollenex Servs., Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 50953(U))

Headnote

The main issue in this case is whether the defendant, GEICO General Insurance Company, properly denied a claim for first-party no-fault benefits based on a lack of medical necessity. The court considered the evidence presented by both parties and found that there is a triable issue of fact regarding the medical necessity of the services at issue. Therefore, the court reversed the order granting the defendant's cross motion for summary judgment and denied the motion to dismiss the complaint. The holding of the case is that there is a triable issue of fact regarding the medical necessity of the services, and as a result, the defendant's cross motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Pollenex Servs., Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 50953(U))

Pollenex Servs., Inc. v GEICO Gen. Ins. Co. (2014 NY Slip Op 50953(U)) [*1]

Pollenex Servs., Inc. v GEICO Gen. Ins. Co.

2014 NY Slip Op 50953(U) [44 Misc 3d 126(A)]

Decided on May 29, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-655 K C

Pollenex Services, Inc. as Assignee of FLORA HOLMES, Appellant, –
against
Geico General Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 31, 2012. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

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 claim at issue based on a lack of medical necessity. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

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. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

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

Decision Date: May 29, 2014