SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
November 4, 2011
AKS MEDICAL, P.C. AS ASSIGNEE OF JAINER LOWE, RESPONDENT,
CLARENDON INSURANCE COMPANY, APPELLANT.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 14, 2010.
AKS Med., P.C. v Clarendon Ins. Co.
Decided on November 4, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order, insofar as appealed from as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.
Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see A. Khodadadi Radiology P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), the affidavit of plaintiff's treating physician submitted in opposition to defendant's motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (cf. Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th, & 13th Jud Dists 2009]).
Accordingly, the order, insofar as appealed from, is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011
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