Infinity Health Prods., Ltd. v Travelers Ins. Co. (2012 NY Slip Op 51063(U))

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 22, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied defendant’s cross motion for summary judgment dismissing the complaint, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” So much of the appeal as is from the portion of the order granting the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denying the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from a judgment of the same court entered October 18, 2010 awarding plaintiff the principal sum of $1,285.56 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of [*2]action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding; as so modified, the order, insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied the branch of plaintiff’s motion seeking summary judgment on the third cause of action, denied defendant’s cross motion for summary judgment dismissing the complaint in its entirety, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” After plaintiff filed a notice of appeal, a judgment was entered awarding plaintiff the principal sum of $1,285.56 on its first and second causes of action. The appeal from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from the judgment (see CPLR 5501 [c]).

We find that the Civil Court improperly granted plaintiff summary judgment on the first and second causes of action. While the court accepted defendant’s allegation that the medical equipment at issue in this case was not delivered directly to plaintiff’s assignor, plaintiff submitted an affidavit which squarely contradicts that allegation. Since the key to summary judgment is issue finding, not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), neither party should have been granted summary judgment on the first and second causes of action. Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied.

The Civil Court correctly denied the branch of defendant’s motion seeking summary judgment dismissing the third cause of action, as defendant proffered only conclusory allegations that plaintiff had submitted insufficient responses (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). However, there is no basis in the record for the Civil Court’s finding of the existence of a triable issue of fact as to whether defendant’s verification requests were proper. Accordingly, the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 11, 2012