Top Choice Med., P.C. v Clarendon Natl. Ins. Co.

[*1] Top Choice Med., P.C. v Clarendon Natl. Ins. Co. 2015 NY Slip Op 50384(U) Decided on March 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2545 K C

Top Choice Medical, P.C. as Assignee of WILLIAM SANCHEZ, Respondent,

against

Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated April 27, 2009. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing plaintiff's second cause of action.

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 from so much of an order of the Civil Court as denied the branch of defendant's motion seeking summary judgment dismissing plaintiff's second cause of action.

Defendant sufficiently established the timely mailing of the denial of claim form at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, 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. Consequently, the branch of defendant's motion seeking summary judgment dismissing plaintiff's second cause of action was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Decision Date: March 12, 2015