AP Diagnostic Med., PC v Chubb Indem. Ins. Co.

[*1] AP Diagnostic Med., PC v Chubb Indem. Ins. Co. 2013 NY Slip Op 51647(U) Decided on October 7, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570292/13.

AP Diagnostic Medical, PC, a/a/o Ivan Aybar, Plaintiff-Respondent,

against

Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff's opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff - which detailed the assignor's complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine - was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 07, 2013