![]() Ctr., 64 NY2d 851, 853 Vitiello v Mayrich Constr. "Failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. ) The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment" (see CPLR 3212 Zuckerman v City of New York, 49 NY2d 557, 562 ). (Brown v Achy, 9 AD3d 30, 33 n 2, citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395. The court's function on a motion for summary judgment is issue finding rather than issue determination. For the reasons set forth below, the court grants defendant's motion on the grounds that it has satisfactorily shown that the MRIs were not medically necessary. Plaintiff opposes the second claim on the grounds that, since it is a radiology facility, it need not prove the medical necessity of the tests administered. Plaintiff opposes the first claim on the grounds that defendant waived this argument by failing to raise it in a timely denial. Defendant Travelers Insurance Company moves for summary judgment on the grounds that (1) plaintiff lacks standing to assert the claim because the doctor who performed the MRIs was an independent contractor on whose behalf the plaintiff may not submit a claim, and (2) the MRIs were not medically necessary. ![]() Plaintiff brings this action to recover $1,791.73 under the No-Fault Law for MRIs that it allegedly performed on its assignor, Olga Papirova. Leon Kucherovsky, New York City (Matthew Viverito of counsel), for plaintiff. Moore & Associates, New York City (Michael L. Precision Diagnostic Imaging, P.C., as Assignee of Olga Papirova, Plaintiff,Ĭivil Court of the City of New York, New York County, May 12, 2005 ![]() ![]() Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.Īs corrected through Tuesday, August 9, 2005 ![]()
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