| Quality Health Prods., Inc v Geico Gen. Ins. Co. |
| 2016 NY Slip Op 51430(U) [53 Misc 3d 135(A)] |
| Decided on September 27, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 (Dawn Jimenez Salta, J.), entered October 7, 2011. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.
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 based upon a lack of medical necessity. The Civil Court denied plaintiff's motion and defendant's cross motion but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its cross motion.
Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the supplies at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order, insofar as appealed from, is affirmed
Pesce, P.J., Aliotta and Solomon, JJ., concur.