| Pollenex Servs., Inc. v GEICO Gen. Ins. Co. |
| 2014 NY Slip Op 50953(U) [44 Misc 3d 126(A)] |
| Decided on May 29, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 31, 2012. The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is denied.
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. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint.
Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff's request to limit the issues for trial (see CPLR 3212 [g]).
Pesce, P.J., Aliotta and Solomon, JJ., concur.