Opinion
No. 2011–1574 K C.
2013-05-6
B & Y SURGICAL SUPPLIES, INC. as Assignee of Rosa Perez, Respondent, v. GEICO GENERAL INS. CO., Appellant.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
The papers submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ) denials of the two claims at issue, which denied the claims on the ground of lack of medical necessity. However, on the record before us, we find that there are triable issues of fact as to the medical necessity of the supplies provided. Therefore, while the Civil Court properly denied defendant's cross motion for summary judgment dismissing the complaint, plaintiff's motion for summary judgment should also have been denied.
Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied.