Opinion
No. 2012–95 K C.
2014-05-22
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 24, 2011. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212(g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.
Present PESCE, P.J., ALIOTTA and SOLOMON, JJ.
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, 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. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion, made, in effect, CPLR 3212(g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issue for trial was medical necessity.
Defendant fails to articulate a sufficient basis to strike the Civil Court's implicit CPLR 3212(g) findings in plaintiff's favor ( see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 AD3d 33 [2013] ). In support of its cross motion, defendant submitted an affirmed report from a peer review doctor and an affidavit from a peer review chiropractor, both of which set forth a factual basis and medical rationale for the determinations that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Accordingly, the order, insofar as appealed from, is affirmed.