March 20, 2012

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 50491(U))

Headnote

The court considered the defendant's motion to renew its prior motion for summary judgment dismissing the complaint. The defendant offered a reasonable excuse for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses. The main issue decided was whether the defendant should be granted renewal of its motion for summary judgment, and upon renewal, the defendant's motion for summary judgment dismissing the complaint was granted. The holding of the court was that the defendant's motion to renew should have been granted, and upon renewal, the defendant demonstrated entitlement to summary judgment dismissing the plaintiff's complaint seeking recovery of first-party no-fault benefits. In opposition, the plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff's no-fault claims. Therefore, the defendant's motion for summary judgment was granted.

Reported in New York Official Reports at Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 50491(U))

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 50491(U)) [*1]

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co.

2012 NY Slip Op 50491(U) [34 Misc 3d 160(A)]

Decided on March 20, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
570899/11.

Ashraf Ashour Physical Therapy, P.C., a/a/o Hector Rojas, Plaintiff-Respondent, – –
against
Interboro Mutual Indemnity Insurance Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

THE CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: March 20, 2012