Opinion
No. 2012–1653QC.
2014-08-8
PARKVIEW MEDICAL & SURGICAL, P.C. as Assignee of Keshia Blyden, Respondent, v. GEICO GENERAL INSURANCE COMPANY, Appellant.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered June 18, 2012. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made CPLR 3212(g) findings in plaintiff's favor, and 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 on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff's motion, made CPLR 3212(g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issue for trial was medical necessity.
We find that defendant has failed to articulate a sufficient basis to strike the Civil Court's CPLR 3212(g) findings in plaintiff's favor ( see EMC Health Prods., Inc. v. Geico Ins. Co., 43 Misc.3d 139[A], 2014 N.Y. Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ). Moreover, 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 ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Accordingly, the order, insofar as appealed from, is affirmed.