January 14, 2013

Fu Kun Wu, L..Ac. v Tri State Consumer Ins. Co (2013 NY Slip Op 50062(U))

Headnote

The court considered the appeal of a provider seeking to recover first-party no-fault benefits, which was dismissed by the Civil Court. The main issue was whether the plaintiff's release of all claims related to the instant case, including the claims in the complaint, voluntarily relinquished their right to recover upon those claims. The court held that the plaintiff's execution of a release bearing the caption of the case and its index number, which stated that the plaintiff released all claims ever had, now have, or hereafter can, shall, or may have for, upon, or by reason of, an assignment of rights from its assignor, effectively relinquished their right to recover upon the claims forming the object of the instant action. As a result, the court dismissed the appeal.

Reported in New York Official Reports at Fu Kun Wu, L..Ac. v Tri State Consumer Ins. Co (2013 NY Slip Op 50062(U))

Fu Kun Wu, L..Ac. v Tri State Consumer Ins. Co (2013 NY Slip Op 50062(U)) [*1]

Fu Kun Wu, L.Ac. v Tri State Consumer Ins. Co

2013 NY Slip Op 50062(U) [38 Misc 3d 134(A)]

Decided on January 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2400 K C.

Fu Kun Wu, L.Ac., as Assignee of VIKTORIYA YAKHNIS, Appellant, —
against
Tri State Consumer Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 2, 2009. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint.

Subsequent to the entry of the order from which plaintiff appeals, plaintiff executed a release bearing the caption of the instant case as well as its index number, which stated that plaintiff released all claims “ever had, now have or hereafter can, shall or may, have for, upon or by reason of, an assignment of rights from [its assignor], insofar as the foregoing relates to the claims forming the object of the instant action.” Inasmuch as the claims at issue on this appeal were interposed in plaintiff’s complaint in this action, plaintiff voluntarily relinquished any right to recover upon these claims (see UCC 1-107).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013