March 27, 2014

Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50607(U))

Headnote

The relevant facts considered in this case were that Elmont Open MRI & Diagnostic Radiology, P.C. was seeking to recover assigned first-party no-fault benefits from New York Central Mutual Fire Ins. Co. The main issue decided was whether the trial court properly denied the defendant's motion for summary judgment dismissing the complaint and whether the trial court properly granted summary judgment to the plaintiff. The holding of the court was that while the trial court properly denied the defendant's motion for summary judgment dismissing the complaint, it improperly granted summary judgment to the plaintiff, as there was a triable issue of fact as to whether verification is outstanding. Therefore, the order was modified by striking the provision which, upon a search of the record, granted summary judgment to the plaintiff. Overall, the order was affirmed with modifications.

Reported in New York Official Reports at Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50607(U))

Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50607(U)) [*1]

Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50607(U) [43 Misc 3d 131(A)]

Decided on March 27, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ
2012-2299 N C.

Elmont Open MRI & Diagnostic Radiology, P.C. Doing Business as ALL COUNTY OPEN MRI & DIAGNOSTIC RADIOLOGY as Assignee of ABDELGHANI KINANE, Respondent,
against
New York Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated August 17, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

ORDERED that the order is modified by striking the provision which, upon a search of the record, granted summary judgment to plaintiff; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

The court properly denied defendant’s motion for summary judgment dismissing the complaint, but improperly granted summary judgment to plaintiff, as there is a triable issue of fact as to whether verification is outstanding (see Cassidy v Allstate Ins. Co., 63 AD3d 869 [2009] Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673 [2006]).

Accordingly, the order is modified by striking the provision which, upon a search of the record, granted summary judgment to plaintiff.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: March 27, 2014