May 17, 2010

Devonshire Surgical Facility v American Tr. Ins. Co. (2010 NY Slip Op 50867(U))

Headnote

The court considered the plaintiffs' motion for summary judgment on the complaint, which sought recovery of overdue assigned first-party no-fault benefits. The main issues decided were whether the plaintiffs were entitled to partial summary judgment on the issue of liability for recovery of these benefits, and whether plaintiff Carnegie Hill Orthopedic Services was entitled to judgment as a matter of law on overdue assigned first-party no-fault benefits. The court held that the plaintiffs were entitled to partial summary judgment on the issue of liability for the first cause of action, and plaintiff Carnegie Hill Orthopedic Services was entitled to judgment as a matter of law on the second and third causes of action seeking recovery of overdue assigned first-party no-fault benefits. The court ordered the matter to be remanded for apportionment between the plaintiffs of the damages on the first cause of action, as the plaintiffs had failed to establish such apportionment in their motion papers.

Reported in New York Official Reports at Devonshire Surgical Facility v American Tr. Ins. Co. (2010 NY Slip Op 50867(U))

Devonshire Surgical Facility v American Tr. Ins. Co. (2010 NY Slip Op 50867(U)) [*1]

Devonshire Surgical Facility v American Tr. Ins. Co.

2010 NY Slip Op 50867(U) [27 Misc 3d 137(A)]

Decided on May 17, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570498/09.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Denio Rivas, Plaintiffs-Appellants,
against
American Transit Insurance Company, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to (1) grant summary judgment to plaintiff Carnegie Hill Orthopedic Services, P.C., on the second and third causes of action seeking the principal sum of $9,118.76, and the Clerk is directed to judgment accordingly; and (2) grant partial summary judgment to plaintiffs on the issue of liability as to their first cause of action, and the matter remanded for apportionment between plaintiffs of the damages thereon; and, as so modified, order affirmed, with $10 costs.

Plaintiffs established their entitlement to partial summary judgment on the issue of liability on the first cause of action, which seeks recovery of overdue assigned first-party no-fault benefits in the principal amount of $3,050.74 (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Additionally, plaintiff Carnegie Hill Orthopedic Services, P.C., (Carnegie) established its prima facie entitlement to judgment as a matter of law on the second and third causes of action, which seek recovery of overdue assigned first-party no-fault benefits in the principal sum of $9,118.76. Defendant’s submissions before Civil Court established its receipt of the respective claims (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]; Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U][2007]), and defendant did not dispute that $9,118.76 remained overdue on the claims of Carnegie upon which the second and third causes of action are based. In opposition, defendant, which failed to timely deny any of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins., 5 AD3d 568 [2004]) and was precluded under a so-ordered stipulation from offering certain evidence at trial based on its failure to respond to plaintiffs’ interrogatories (see Wilson v Galicia Contr. & [*2]Restoration Corp., 10 NY3d 828, 830 [2008]), failed to raise any triable issue.

Although defendant does not dispute the total amount overdue on the first cause of action, we remand the matter to Civil Court for an apportionment of the amount owed to each respective plaintiff on that cause of action, since plaintiffs failed to establish such apportionment in their motion papers.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 17, 2010