Mike Supply, Inc. v Progressive Ins. Co.

[*1] Mike Supply, Inc. v Progressive Ins. Co. 2012 NY Slip Op 50872(U) Decided on May 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-2035 Q C.

Mike Supply, Inc. as Assignee of DIANA PIERRE, Appellant,

against

Progressive Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 15, 2010, deemed from a judgment of the same court entered June 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 15, 2010 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that judgment is reversed, without costs, the order granting defendant's motion for summary judgment dismissing the complaint is vacated and defendant's motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In opposition to the motion, plaintiff demonstrated that there was a triable [*2]issue of fact as to whether the supplies at issue were medically necessary (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the judgment is reversed, the order granting defendant's motion for summary judgment dismissing the complaint is vacated and the motion is denied.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 2012