Healing Art Acupuncture, P.C. v Allstate Ins. Co., 2015 NY Slip Op 51670(U)(App. Term 2d Dept. 2015)
“While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the complaint insofar as it sought to recover for services rendered after November 20, 2009″
Search of the record was inappropriate. It makes sense in this case as Plaintiff has no reason to believe (s) he had to proffer sufficient evidence to show the services were medically necessary,
