Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co.

[*1] Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co. 2014 NY Slip Op 51233(U) Decided on July 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1183 Q C

Optimal Well-being Chiropractic, P.C. as Assignee of ALVIN BOHONNE, Respondent,

against

Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered January 3, 2012. The order, insofar as appealed from and as limited by the brief, 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, defendant appeals, as limited by its brief, from so much of an order as denied defendant's cross motion for summary judgment dismissing the complaint.

While defendant sought summary judgment on the grounds that plaintiff's assignor had failed to appear for independent medical examinations and that plaintiff was seeking to recover for treatment which the assignor swore he never received, defendant failed to establish that such defenses are not precluded.[FN1] As result, contrary to defendant's contention on appeal, the record does not demonstrate that defendant is entitled to summary judgment dismissing the complaint on either of these grounds (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2d Dept 2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). To the extent that defendant also sought summary judgment on the ground of lack of medical necessity, we find, upon a review of the record, that defendant is also not entitled to summary judgment on that ground.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: July 28, 2014

Footnotes

Footnote 1: We note that if the treatment at issue had been rendered after April 1, 2013, pursuant to the revised Insurance Department Regulations, the defense that the services were not provided would not be subject to preclusion (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [g] [eff Apr. 1, 2013]).