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B & Y Surgical Supplies, Inc. As Assignee of Rosa Perez, Respondent v. Geico General Ins. Co.

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 6, 2013

B & Y SURGICAL SUPPLIES, INC. AS ASSIGNEE OF ROSA PEREZ, RESPONDENT, --
v.
GEICO GENERAL INS. CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011.

B & Y Surgical Supplies, Inc. v GEICO Gen. Ins. Co.

Decided on May 6, 2013

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and SOLOMON, JJ

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.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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