Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v MVAIC (2019 NY Slip Op 50226(U))
[*1]| Island Life Chiropractic Pain Care, PLLC v MVAIC |
| 2019 NY Slip Op 50226(U) [62 Misc 3d 148(A)] |
| Decided on February 22, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-3001 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered August 1, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
Plaintiff’s assignor failed to demonstrate that he was a “qualified” person entitled to benefits from MVAIC, as the record indicates that plaintiff’s assignor admitted that, about one week prior to the accident, he had purchased the car he was driving when the accident occurred (see Insurance Law § 5202 [b]; Naula v Dela Puente, 48 AD3d 434 [2008]; Barillas v Rivera, 32 AD3d 872 [2006]; T & S Med. Supply Corp. v MVAIC, 58 Misc 3d 131[A], 2017 NY Slip Op 51755[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 22, 2019State Farm Fire & Cas. Co. v Jewsbury (2019 NY Slip Op 01247)
Reported in New York Official Reports at State Farm Fire & Cas. Co. v Jewsbury (2019 NY Slip Op 01247)
| State Farm Fire & Cas. Co. v Jewsbury |
| 2019 NY Slip Op 01247 [169 AD3d 949] |
| February 20, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| State Farm Fire and Casualty Company, Appellant, v Jason Jewsbury et al., Defendants, and Jules Francois Parisien, M.D., Respondent. |
Bruno, Gerbino & Soriano, LLP, Melville, NY (Nathan Shapiro of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn, NY (Damin J. Toell of counsel), for respondent.
In an action for a judgment declaring that the plaintiff is not obligated to pay certain insurance benefits under an automobile liability policy because of alleged material misrepresentations in the policy application, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated March 16, 2017. The order granted that branch of the motion of the defendant Jules Francois Parisien which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against him.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, and that branch of the motion of the defendant Jules Francois Parisien which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against him is denied.
On February 5, 2016, while operating a vehicle insured by the plaintiff, State Farm Fire and Casualty Company (hereinafter State Farm), the defendant Jason Jewsbury allegedly was injured in a collision. He was treated for his injuries by the defendant Jules Francois Parisien, a physician, and by other providers. After State Farm received and failed to pay first-party beneficiary claims submitted by Parisien, Parisien commenced two actions in the Civil Court of the City of New York for payment (see Insurance Law § 5106). While those actions were pending, State Farm commenced this action in the Supreme Court, Kings County. State Farm seeks a judgment declaring that it is not required to pay any claims related to the accident on the policy it issued to Jewsbury, on the ground that Jewsbury made material misrepresentations in his policy application. Specifically, State Farm alleges that, in order to obtain a lower policy premium, Jewsbury stated on the policy application that the car would be garaged in Albany when, in fact, Jewsbury garaged the vehicle in Kings County. In addition to Jewsbury and Parisien, State Farm named as defendants various other entities that had provided Jewsbury with medical or no-fault treatment related to the accident.
A court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211 (a) (4) based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same (see Cooper v Thao, 162 AD3d 980, 981 [2018]; DAIJ, Inc. v Roth, 85 AD3d 959, 959 [2011]). “The critical element is that both suits arise out of the same subject matter or series of alleged wrongs” (Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622 [2009] [internal quotation marks omitted]).
The Supreme Court improvidently exercised its discretion in granting that branch of Parisien’s motion which was pursuant to CPLR 3211 (a) (4) to dismiss the complaint insofar as asserted against him. A declaratory judgment resolving the issue of State Farm’s obligation to pay any claims on the policy with respect to the accident, and naming all providers who may seek reimbursement under the policy, would further the interest of judicial economy. Indeed, the Civil Court may not issue the declaratory relief State Farm seeks in this action (see Fresh Acupuncture, P.C. v Interboro Ins. Co., 56 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; cf. CPLR 3001; Insurance Law § 3420 [a] [6]; Mazzei v Kyriacou, 139 AD3d 823, 824 [2016]), and the other providers who may seek no-fault reimbursements relating to that collision are not parties to the two actions pending in the Civil Court. Dillon, J.P., Balkin, Miller and Iannacci, JJ., concur.
Country-Wide Ins. Co. v Yao Jian Ping (2019 NY Slip Op 50160(U))Reported in New York Official Reports at Country-Wide Ins. Co. v Yao Jian Ping (2019 NY Slip Op 50160(U))
| Country-Wide Ins. Co. v Yao Jian Ping |
| 2019 NY Slip Op 50160(U) [62 Misc 3d 144(A)] |
| Decided on February 13, 2019 |
| Appellate Term, First 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 February 13, 2019
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
570448/18
against
Yao Jian Ping, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Mary V. Rosado, J.), dated June 13, 2018, which denied his motion to dismiss the action and for related relief.
Per Curiam.
Order (Mary V. Rosado), dated June 13, 2018, affirmed, with $10 costs.
This action, seeking a de novo adjudication of a no-fault insurance claim following a master arbitrator’s award in excess of $5,000 (see Insurance Law § 5106[c]), was properly commenced in Civil Court, since the amount in dispute did not exceed $25,000 (see CCA 212-a; Imperium Ins. Co. v Innovative Chiropractic Servs., P.C., 43 Misc 3d 137[A], 2014 NY Slip Op 50697[U] [App Term, 1st Dept 2014]; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]).
In light of our disposition, defendant’s remaining argument has been rendered academic.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: February 13, 2019
Reported in New York Official Reports at Atlantic Chiropractic, P.C. v Utica Mut. Ins. Co. (2019 NY Slip Op 50173(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Utica Mutual Ins. Co., Appellant.
Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order denied defendant’s motion for leave to amend its answer, pursuant to CPLR 3025 (b), to add, among other things, the affirmative defense of res judicata, to deem the amended answer served nunc pro tunc and, in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred based on that doctrine.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for leave to amend its answer, pursuant to CPLR 3025 (b), to add, among other things, the affirmative defense of res judicata, to deem the amended answer served nunc pro tunc and in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred based on that doctrine is granted.
Plaintiff commenced this action in the Civil Court in August 2011 to recover assigned first-party no-fault benefits. On November 21, 2011, the insurer commenced a declaratory judgment action in the Supreme Court, Nassau County, and, approximately two weeks later, on December 8, 2011, served an answer in the Civil Court action. In a declaratory judgment entered May 7, 2013 upon the failure of plaintiff and its assignor to appear and answer the complaint, the Supreme Court declared, among other things, that the insurer is not required to pay no-fault benefits to the provider and its assignor on the ground that the alleged accident was a staged incident and, therefore, was not covered under the policy in question. Thereafter, the insurer moved in the Civil Court for leave to amend its answer to include, insofar as is relevant, the affirmative defense of res judicata, to deem the amended answer timely served nunc pro tunc, and, in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action in the Civil Court is barred under the doctrine of res judicata. Plaintiff opposed the [*2]motion. By order dated December 17, 2014, the Civil Court denied defendant’s motion, finding that defendant had waived its res judicata defense by submitting its answer in the Civil Court after it had commenced the declaratory judgment action.
Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Ingrami v Rovner, 45 AD3d 806, 808 [2007]). In opposition to defendant’s motion, plaintiff failed to demonstrate any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]) or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832 [1980], affd 54 NY2d 883 [1981]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) as a result of the proposed amendment to the answer, while defendant established that the proposed affirmative defense had merit. Contrary to the determination of the Civil Court that defendant had waived its defense of res judicata, defendant had no basis to assert that defense before May 7, 2013, when the declaratory judgment was entered in the Supreme Court (see Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]). Consequently, the Civil Court should have granted the branches of defendant’s motion seeking leave to amend the answer to include the res judicata defense and to deem the answer timely served nunc pro tunc.
“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). It is well settled that default judgments which have not been vacated can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court declaratory judgment, we reverse the order and grant the branch of defendant’s motion seeking, in effect, summary judgment dismissing the complaint as barred (see Active Chiropractic, P.C. v Allstate Ins., 58 Misc 3d 156[A], 2018 NY Slip Op 50201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique, 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 304; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d 1).
Accordingly, the order is reversed and defendant’s motion for leave to amend its answer pursuant to CPLR 3025 (b) to add, among other things, the affirmative defense of res judicata, to deem the proposed amended answer timely served nunc pro tunc and, in effect, for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 08, 2019
Reported in New York Official Reports at Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Insurance, Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). In an order entered March 9, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were the location of the generation of defendant’s EUO letters and matters relating to the reasonableness of its EUO requests. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).
Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable, in that defendant did not [*2]respond to plaintiff’s letter demanding that defendant provide its good faith reasons for requesting plaintiff’s EUO. However, as plaintiff failed to submit proof that it had mailed such a letter, its argument lacks any basis (see e.g. Professional Health Imaging, P.C. v State Farm Mut. Aut. Ins. Co., 52 Misc 3d 132[A], 2016 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant would not have been required to provide the reason for its demand in response to an objection from plaintiff (see Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]).
Plaintiff’s remaining contentions are without merit.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 08, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50099(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50099(U) [62 Misc 3d 143(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1772 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,755.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $7,755 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50098(U))
| Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50098(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1771 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $13,205.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $13,205 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50097(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50097(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1770 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,325.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $5,325 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50096(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50096(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1767 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,855.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $7,855 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019
Reported in New York Official Reports at Lotus Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50095(U))
| Lotus Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 50095(U) [62 Misc 3d 142(A)] |
| Decided on January 18, 2019 |
| 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 January 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2016-1766 K C
against
Country-Wide Ins. Co., Appellant.
Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,915.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
This action by a provider to recover assigned first-party no-fault benefits was consolidated for purposes of a nonjury trial with five other actions. After taking testimony as to the first of the six cases, Healthy Way Acupuncture, P.C., as Assignee of Nieves Jason v Country-Wide Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2016-1765 K C], decided herewith), the Civil Court found in favor of plaintiff in this action, and a judgment awarding plaintiff the principal sum of $4,915 was entered accordingly.
We agree with defendant that the judgment must be reversed, as no testimony was taken as to this action, and a new trial should be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 18, 2019