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Pollenex Servs., Inc. v GEICO Gen. Ins. Co., 2014 NY Slip Op 50953(U)(App. Term 2d Dept. 2014)
“Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).”
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2 Responses
what happened to plaintiff’s motion?
was that ever decided?
This is just a situation where the Appellate Term didn’t want to impose a 3212(g) finding on the lower court, which didn’t need to make one when granting the defendant’s cross motion. Had the lower court made a 3212(g)finding, The Appellate Term would have left it alone. (See EMC Health Products v GEICO). I think this decision, as worded, still leaves it open for the lower court to make such a finding before trial if it wants to. It certainly doesn’t prevent the trial court from making that finding. The Appellate Term makes a finding that there is a triable issue of fact as to medical necessity, rather than denying both motions outright. How do you have an issue of fact with respect to medical necessity without implying that a claim was submitted?