December 17, 2013

Reyes-Arguelles v Omni Indem. Co. (2013 NY Slip Op 52153(U))

Headnote

A provider sued Omni Indemnity Company for assigned first-party no-fault benefits, and the defendant moved to dismiss under CPLR 3211(a) and 3212. The Civil Court, Kings County, denied the motion. The Appellate Term, Second Department, held that the defendant did not specify the subdivision of CPLR 3211(a) relied on and that its papers showed no basis for dismissal under any subdivision. It further held that the alternative request for summary judgment was premature because the defendant made it before serving an answer and issue had not been joined. The order was affirmed and no other issue was decided.

Reported in New York Official Reports at Reyes-Arguelles v Omni Indem. Co. (2013 NY Slip Op 52153(U))

[*1]
Reyes-Arguelles v Omni Indem. Co.
2013 NY Slip Op 52153(U) [42 Misc 3d 128(A)]
Decided on December 17, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ
.

Zenaida A. Reyes-Arguelles, M.D. as Assignee of STEPHAN NOEL, Respondent, —

against

Omni Indemnity Company, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 29, 2011. The order denied defendant’s motion to dismiss the complaint.


ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) and 3212. Plaintiff opposed the motion. Defendant appeals from the order of the Civil Court which denied defendant’s motion.

To the extent that defendant sought to dismiss the complaint pursuant to CPLR 3211 (a), defendant’s moving papers failed to specify under which subdivision of CPLR
3211 (a) dismissal was sought. In any event, upon a review of the motion papers, we find that they failed to show that relief was appropriate under any of the subdivisions of CPLR 3211 (a).

To the extent that the motion sought, in the alternative, summary judgment dismissing the complaint pursuant to CPLR 3212, the motion was premature since CPLR 3212 (a) specifically provides that such a motion may be made only “after issue has been joined.” Consequently, as defendant did not serve its answer prior to making the instant motion, and, as the court did not treat the motion under CPLR 3211 (c), the Civil Court “was powerless to grant summary judgment on the complaint prior to joinder of issue” (Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 727 [2006]; see also Chakir v Dime Sav. Bank of NY, 234 AD2d 577 [1996]; Milk v Gottschalk, 29 AD2d 698 [1968]; cf. Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d, 11th & 13th Jud Dists 2013] [answer served before motion made to dismiss complaint]).

We pass on no other issue. [*2]

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: December 17, 2013