Village Chiropractic v Clarendon Natl. Ins. Co.

[*1] Village Chiropractic v Clarendon Natl. Ins. Co. 2012 NY Slip Op 51640(U) Decided on August 23, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1725 Q C.

Village Chiropractic as Assignee of VIVIAN A. NICHOLAS, Respondent,

against

Clarendon National Insurance Company Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered May 12, 2010. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and awarded motion costs to plaintiff.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint and awarded motion costs to plaintiff.

As the affidavit of plaintiff's treating chiropractor demonstrated the existence of a triable issue of fact as to the medical necessity of the services at issue, we find no basis to disturb so much of the order as denied defendant's motion for summary judgment (see Ozone Park Chiropractic v Clarendon Natl. Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51453[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). We further find that the award of motion costs to plaintiff was not an improper exercise of discretion (CPLR 8106; CCA 1903; see Babikian v [*2]Nikki Midtown, LLC, 60 AD3d 470 [2009]; Greenspan v Rockefeller Ctr. Mgt. Corp., 268 AD2d 236 [2000]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 2012