July 8, 2008

Midwood Med. Equip. & Supply, Inc. v Auto One Ins. Co. (2008 NY Slip Op 51459(U))

Headnote

The court considered the fact that Midwood Medical Equipment & Supply, Inc. was seeking to recover assigned first-party no-fault benefits from Auto One Insurance Company. The main issue was whether the plaintiff was required to plead and identify its license in its complaint as required by CPLR 3015 (e). The court held that the defendant's contention that the plaintiff was not licensed was purely conclusory and not based on any factual evidence in the record. Furthermore, the court determined that CPLR 3015 (e) is only applicable to actions against a consumer, and in this case, the defendant was an insurance company from which the plaintiff was seeking to recover benefits. Therefore, the court reversed the decision of the lower court and denied the defendant's cross motion for summary judgment.

Reported in New York Official Reports at Midwood Med. Equip. & Supply, Inc. v Auto One Ins. Co. (2008 NY Slip Op 51459(U))

Midwood Med. Equip. & Supply, Inc. v Auto One Ins. Co. (2008 NY Slip Op 51459(U)) [*1]

Midwood Med. Equip. & Supply, Inc. v Auto One Ins. Co.

2008 NY Slip Op 51459(U) [20 Misc 3d 133(A)]

Decided on July 8, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1308 K C.

Midwood Medical Equipment & Supply, Inc. a/a/o Sonia Siton, Appellant,
against
Auto One Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 26, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff was not licensed and even if it was licensed, it failed to plead and identify its license in its complaint as required by CPLR 3015 (e). The court below granted defendant’s cross motion for summary judgment, holding that plaintiff failed to plead in its complaint its licensure status as required by CPLR 3015 (e) and the instant appeal by plaintiff ensued.

Defendant’s contention that plaintiff was not licensed was purely conclusory as it was not based on any factual evidence in the record.

Further, CPLR 3015 (e) provides, in pertinent part:
“Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York . . . the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license . . . The failure of the plaintiff to [*2]comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter ” (emphasis added).
CPLR 3015 (e) is only applicable to actions against a consumer (see Matter of Migdal Plumbing & Heating Corp. [Dakar Devs.], 232 AD2d 62 [1997]). In the case at bar, defendant is not a consumer but is the insurance company from which plaintiff is seeking to recover assigned first-party no-fault benefits. Accordingly, the court below improperly granted defendant’s motion for summary judgment dismissing the complaint.
Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 8, 2008