May 19, 2015

Metro Health Prods., Inc. v Allstate Ins. Co. (2015 NY Slip Op 50812(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York denying the plaintiff's motion for summary judgment and granting the defendant reverse summary judgment dismissing the complaint. The main issue decided was whether there was a triable issue of fact as to whether the claims at issue had been submitted to the defendant. The holding of the case was that on the record before them, the court found that there was a triable issue of fact as to whether the claims had been submitted to the defendant, and therefore, neither party was entitled to summary judgment. The court modified the order by striking the provision which granted the defendant reverse summary judgment dismissing the complaint.

Reported in New York Official Reports at Metro Health Prods., Inc. v Allstate Ins. Co. (2015 NY Slip Op 50812(U))

Metro Health Prods., Inc. v Allstate Ins. Co. (2015 NY Slip Op 50812(U)) [*1]

Metro Health Prods., Inc. v Allstate Ins. Co.

2015 NY Slip Op 50812(U) [47 Misc 3d 153(A)]

Decided on May 19, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-159 K C

Metro Health Products, Inc. as Assignee of DANIELLE HAMPTON, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered November 14, 2012. The order denied plaintiff’s motion for summary judgment and, upon searching the record, granted defendant reverse summary judgment dismissing the complaint.

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

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

On the record before us, we find that there is a triable issue of fact as to whether the claims at issue had been submitted to defendant. Therefore, neither party was entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by striking the provision which, upon a search of the record, granted defendant reverse summary judgment dismissing the complaint.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 19, 2015