Crossbay Acupuncture, P.C. v Hartford Cas. Ins. Co. (2010 NY Slip Op 50487(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered April 17, 2008. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover first-party no-fault benefits assigned to it by a pedestrian who was allegedly injured after having been hit by the insured’s car, the Civil Court granted a motion denominated by both defendant and the court as one seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7). However, in support of the motion, defendant did not argue that the allegations in the complaint failed to set forth a cause of action (see Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608, 609 [2002]) or that plaintiff does not have a cause of action (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]), and the court did not so find. Rather, defendant sought to establish an affirmative defense, set forth in its answer, that the injuries did not arise from an insured incident, and sought dismissal on that ground (see CPLR 3212 [b]). Indeed, in opposition to the motion, plaintiff argued that defendant’s submissions were insufficient to establish defendant’s entitlement to summary judgment based on its defense. The Civil Court addressed itself to the merits of defendant’s defense, finding that “defendant has sustained its burden of proof of lack of coverage and therefore plaintiff’s complaint is dismissed.” Accordingly, we find that the court properly treated defendant’s motion, denominated as one pursuant to CPLR 3211 (a) (7), as a motion for summary judgment pursuant to CPLR 3212 (cf. Hopper v McCollum, 65 AD3d 669 [2009]).

We further find that the affidavit of the insured, submitted by defendant in support of its motion, was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since plaintiff failed to raise a triable issue of fact, the Civil Court properly granted defendant summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, we affirm the order.

We note that in addition to arguing that the order appealed from should be reversed, plaintiff contends that an order dated February 25, 2008, which was subsequently sua sponte [*2]vacated by order dated May 14, 2008, should be reinstated. As no appeal has been taken from either of these orders, we may not review them. We further note that no appeal lies as of right from the order dated May 14, 2008.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 2010