September 15, 2017

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U))

Headnote

The court considered a case in which Charles Deng Acupuncture, P.C. sought to recover first-party no-fault benefits from 21st Century Insurance Company. Charles Deng Acupuncture, P.C. moved for summary judgment on a claim for $80, and 21st Century Insurance Company cross-moved for summary judgment dismissing the complaint. The main issue decided was whether there was a triable issue of fact as to whether 21st Century Insurance Company properly denied plaintiff's claim for $80. The holding of the court was that there was indeed a triable issue of fact as to whether the defendant properly denied the claim for $80, therefore, the branch of the plaintiff's motion seeking summary judgment on that claim was denied.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U))

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U)) [*1]

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co.

2017 NY Slip Op 51197(U) [57 Misc 3d 131(A)]

Decided on September 15, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2019 Q C

Charles Deng Acupuncture, P.C., as Assignee of Antoine, Francoise, Respondent-Appellant,
against
21st Century Insurance Company, Appellant-Respondent.

Law Office of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for appellant-respondent. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent-appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 28, 2014. The order, insofar as appealed from by defendant and as limited by its brief, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. The order, insofar as cross-appealed from by plaintiff, denied the branches of plaintiff’s motion seeking summary judgment on the remainder of the complaint and granted the branches of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as reviewed, is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 is denied; as so modified, the order is affirmed, without costs.

Insofar as is relevant to this appeal in an action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of an order of the Civil Court entered July 28, 2014 as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. Plaintiff’s cross appeal, from so much of the order as denied the remaining branches of plaintiff’s motion and granted the remaining branches of defendant’s cross motion, is dismissed as abandoned.

On this record, there is a triable issue of fact as to whether defendant properly denied plaintiff’s claim for $80.

Accordingly, the order, insofar as reviewed, is modified by providing that the branch of [*2]plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017