Throgs Neck Multicare, P.C. v Mercury Cas. Co.

[*1] Throgs Neck Multicare, P.C. v Mercury Cas. Co. 2016 NY Slip Op 51083(U) Decided on July 8, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and BRANDS, JJ.
2015-598 S C

Throgs Neck Multicare, P.C., as Assignee of MARY PADEN, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 18, 2015. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint.

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 District Court as denied the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity.

For the reasons stated in Throgs Neck Multicare, P.C., as Assignee of Mary Paden v Mercury Casualty Co. (___ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2015-502 S C], decided herewith), we find that defendant failed to establish that the affirmation by plaintiff's doctor should not be considered. As the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Comprehensive MRI of NY, P.C. v New York Cent. Mut. Fire Ins. Co., 42 Misc 3d 137[A], 2014 NY Slip Op 50128[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), the District Court properly denied the branch of defendant's motion seeking summary judgment.

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

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: July 08, 2016