Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50383(U))

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Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co.

2015 NY Slip Op 50383(U) [47 Misc 3d 130(A)]

Decided on March 12, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 12, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2477 K C

Metropolitan Diagnostic Medical Care, P.C. as Assignee of TARESHE ALLISON, Appellant,

against

New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 10, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

We agree with plaintiff's contention on appeal that the physician's affirmation submitted by plaintiff in opposition to defendant's motion was sufficient to demonstrate the existence of a triable issue of fact as to whether the services provided were medically necessary. Consequently, defendant's motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]). We decline plaintiff's request to limit the issues for trial (see CPLR 3212 [g]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: March 12, 2015