Cassano v. Metropolitan Life Insurance

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered October 5, 1993, which, inter alia, denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

In view of the fact that questions are raised concerning whether defendant properly determined that "Monitored Anesthesia Care” ("MAC”) did not constitute "medically necessary” services to plaintiffs under the terms of the relevant insurance contracts and therefore the costs associated with such services were not reimbursable to plaintiffs, summary judgment was properly denied. Notably, even under the more lenient standard of review i.e., whether defendant’s decision was arbitrary and capricious, questions remain unresolved as to whether MAC should constitute a medical necessity. Finally, we note that since plaintiffs claim that MAC is a medically necessary covered claim under the existing contracts, and do not, as defendant claims, seek to alter the "scope” of the contracts’ coverage, the institution of the instant plenary lawsuit was appropriate (cf., Langham v State of New York, 124 AD2d 405 , lv denied 69 NY2d 605 ). Concur— Rosenberger, J. P., Ellerin, Kupferman, Ross and Rubin, JJ.