March 11, 2014

Flatlands Med., P.C. v Kemper Ins. Co. (2014 NY Slip Op 50419(U))

Headnote

The court considered the fact that the defendant had established that a declaratory judgment had been entered on default in a Supreme Court, New York County, action, which provided that the named defendants, including the plaintiff, "are not entitled to recover assigned first-party no-fault benefits stemming from the accident at issue." The main issue decided was whether the plaintiff was entitled to recover assigned first-party no-fault benefits arising from the same accident at issue in the Supreme Court case. The holding of the case was that the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212 was properly granted, and the order was affirmed.

Reported in New York Official Reports at Flatlands Med., P.C. v Kemper Ins. Co. (2014 NY Slip Op 50419(U))

Flatlands Med., P.C. v Kemper Ins. Co. (2014 NY Slip Op 50419(U)) [*1]

Flatlands Med., P.C. v Kemper Ins. Co.

2014 NY Slip Op 50419(U) [42 Misc 3d 150(A)]

Decided on March 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-890 K C.

Flatlands Medical, P.C. as Assignee of DWAYNE GRIFFITHS, Appellant,
against
Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 6, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

In support of its motion, defendant established that a declaratory judgment had been entered on default in a Supreme Court, New York County, action, which provided that the named defendants in that action, including plaintiff herein, “are not entitled to recover assigned first-party no-fault benefits stemming from the accident at issue.” As the instant action seeks to recover for assigned first-party no-fault benefits arising from the same accident at issue in the Supreme Court case, defendant’s motion was properly granted (see Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d, 11th & 13th Jud Dists 2013] EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012])

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014