August 6, 2012

Bright Med. Supply Co. v GMAC Integon Ins. Co. (2012 NY Slip Op 51495(U))

https://www.beynensonlaw.com/case-law/bright-med-supply-co-v-gmac-integon-ins-co-2012-ny-slip-op51495u/

Court: Appellate Term, Second Department
Decided: August 6, 2012
Citation: 2012 NY Slip Op 51495(U) · 36 Misc 3d 141(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Provider prevailed
Issues: Discovery and procedure

Cite as

Bright Med. Supply Co. v GMAC Integon Ins. Co., 36 Misc 3d 141(A), 2012 NY Slip Op 51495(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to show that the provider knew the terms of a TRO barring commencement of its no-fault action. The Civil Court granted dismissal under CPLR 3211 (a) (1) and (4) because the action allegedly violated a TRO issued in another action involving both parties. The provider had not been served with the TRO when it commenced this action, and the insurer offered no proof of actual or imputed knowledge of its terms. The insurer's assertion on appeal that the provider's attorney knew a TRO was being sought was outside the record. The Appellate Term, Second Department, reversed the judgment, vacated the dismissal order, and denied the insurer's motion.

Reported in New York Official Reports at Bright Med. Supply Co. v GMAC Integon Ins. Co. (2012 NY Slip Op 51495(U))

[*1]

Bright Med. Supply Co. v GMAC Integon Ins. Co.

2012 NY Slip Op 51495(U) [36 Misc 3d 141(A)]

Decided on August 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-2952 K C.

Bright Medical Supply Co. as Assignee of PIERRE-LOUIS CLIFFORD, Appellant, —
against
GMAC Integon Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 27, 2010, deemed from a judgment of the same court entered October 5, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 27, 2010 order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (4), dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order entered July 27, 2010 is vacated, and defendant’s motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered July 27, 2010 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (4) on the ground that the action had been commenced by the filing of the summons and complaint (see CCA 400 [a]) in violation of a temporary restraining order (TRO) that had been issued by the Supreme Court in another action involving numerous parties, including the parties to this action. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to have been taken (see [*2]CPLR 5501 [c]).

It is undisputed that, at the time plaintiff commenced the instant action, it had not yet been served with the TRO. In support of its motion to dismiss, defendant did not submit any proof that plaintiff was otherwise aware of the existence of the TRO or of its terms. Defendant’s contention, made for the first time on appeal, that plaintiff’s attorney was aware that a TRO was being sought is dehors the record and will not be considered (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Thus, as defendant failed to establish that plaintiff had knowledge, actual or imputed, of the terms of the TRO, defendant did not show that plaintiff was barred by the TRO from commencing the instant action (see Matter of McCormick v Axelrod, 59 NY2d 574, 585 [1983]; People ex rel. Stearns v Marr, 181 NY 463 [1905]; Rosado v Edmundo Castillo Inc., 54 AD3d 278 [2008]; Lathrop v Lathrop, 271 App Div 807 [1946]; 67A NY Jur 2d, Injunctions § 213; 12A Carmody-Wait 2d § 78:230, at 441-442).

We note that plaintiff asserts in its brief on appeal, and defendant does not deny, that the TRO has subsequently been lifted.

Accordingly, the judgment is reversed, the order entered July 27, 2010 is vacated, and defendant’s motion to dismiss the complaint is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 06, 2012

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