Opinion
570152/16
12-29-2016
Palisade Surgery Center LLC and Tutto Anesthesia a/a/o Fresia Macias, Plaintiffs-Appellants, v. Allstate Property & Casualty Insurance Company, Defendant-Respondent.
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered July 30, 2015, as denied their cross motion for summary judgment on the issue of medical necessity.
Per Curiam.
Order (Tanya R. Kennedy, J.), entered July 30, 2015, affirmed, with $10 costs.
The issue of medical necessity was not fully litigated or decided in the prior first-party no-fault action, and thus the doctrine of collateral estoppel does not bar defendant-insurer from raising the medical necessity defense in this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; cf. Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). On the merits, we agree with Civil Court that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the manipulation under anesthesia procedure underlying plaintiff's claims (see Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50565[U] [App Term, 1st Dept 2015]; Doctor Richard Med., P.C. v Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur Decision Date: December 29, 2016