Opinion
No. 2014–1015 K C.
09-21-2016
METRO PSYCHOLOGICAL SERVICES, P.C., as Assignee of Seymon Feygin, Respondent, v. AUTO ONE INSURANCE COMPANY, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 11, 2014. The order, insofar as appealed from, denied the branch of defendant's motion seeking 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 the branch of defendant's motion seeking summary judgment dismissing the complaint.
Upon a review of the record, we agree with the Civil Court's determination 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 N.Y.2d 557 [1980] ).
We note that the Civil Court failed to determine the branch of defendant's motion seeking to compel plaintiff to appear for a deposition, and, thus, that branch of defendant's motion remains pending and undecided (see Creese v. Long Is. Light. Cfo., 98 AD3d 708, 711 [2012] ; W.W. Med., P.C. v. Allstate Ins. Co., 41 Misc.3d 130[A], 2013 N.Y. Slip Op 51743[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.