March 12, 2013

Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50359(U))

Headnote

The court considered the motion to dismiss the complaint pursuant to CPLR 3211, filed by the defendant, New York Central Mutual Fire Insurance Company. The main issue was whether the complaint, supported by the affidavit in opposition of plaintiff's billing manager, was sufficient to state a cause of action for recovery of first-party no-fault benefits. The court held that the complaint, combined with the affidavit, was indeed sufficient to state a cause of action for recovery of first-party no-fault benefits. The court also found that the affidavit of the defendant's no-fault litigation examiner was not "essentially undeniable" enough to conclusively refute any claim that the plaintiff might have. Therefore, the court affirmed the order of the Civil Court, denying the defendant's motion to dismiss the complaint.

Reported in New York Official Reports at Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50359(U))

Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50359(U)) [*1]

Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co.

2013 NY Slip Op 50359(U) [38 Misc 3d 147(A)]

Decided on March 12, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
570898/11.

Innovative MR Imaging, P.C., a/a/o Michael Varricchio, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company,Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 16, 2011, which denied its motion to dismiss the complaint pursuant to CPLR 3211.

Per Curiam.

Order (Fernando Tapia, J. ), entered March 16, 2011, affirmed, with $10 costs.

Accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as we must in the context of a motion to dismiss on the pleadings (see Leon v Martinez, 84 NY2d 83, 87—88 [1994]), we find the complaint, as amplified by the affidavit in opposition of plaintiff’s billing manager (see Commissioners of State Ins. Fund v Wojciech Perkowski, Inc., 291 AD2d 219 [2002]), sufficient to state a cause of action for recovery of first-party no-fault benefits. Nor was the affidavit of defendant’s no-fault litigation examiner so “essentially undeniable” as to qualify as documentary evidence that conclusively refutes any claim that plaintiff might have (see Mason v First Cent. Nat. Life Ins. Co. of New York, 86 AD3d 854, 855 [2011]; Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C3211:10, at 21—22).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013