August 10, 2006
Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51553(U))
Headnote
Reported in New York Official Reports at Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51553(U))
| Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co. |
| 2006 NY Slip Op 51553(U) [12 Misc 3d 147(A)] |
| Decided on August 10, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through September 1, 2015; it will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: DAVIS, J.P., GANGEL-JACOB, SCHOENFELD, JJ
570085/06.
against
State Farm Mutual Automobile Insurance Company, Defendant-Appellant.
Defendant appeals from so much of an order of the Civil Court, New York County (Eileen A. Rakower, J.), entered September 28, 2005, as denied its cross motion for summary judgment dismissing the complaint, or, in the alternative, to compel discovery.
PER CURIAM:
Order (Eileen A. Rakower, J.), entered September 28, 2005, modified (1) to dismiss the third and fourth causes of action pertaining to assignor Ramon Albino, and (2) to direct plaintiff to provide verified responses to questions 6-9, and 23 of the interrogatories, to respond to items 4-6, 8-9, 16, and 29-30 of defendant’s demand for discovery and inspection, and to comply with defendant’s notice of examination before trial requesting the deposition of Dr. Rafael; as so modified, affirmed, with $10 costs.
Defendant’s cross motion for summary judgment should have been granted to the extent of dismissing the third and fourth causes of action seeking no-fault benefits in the sum of $2,016.27 as to assignor Ramon Albino. It is undisputed on this record that the no-fault claims with respect to Albino were submitted to arbitration prior to the commencement of the action herein. By electing to arbitrate, plaintiff waived its right to commence an action to litigate any no-fault claims arising from the same accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]).
Civil Court properly denied that branch of defendant’s cross motion which sought dismissal of the causes of action pertaining to assignors Odilis Garcia and Gilberto Hernandez. Defendant waived the affirmative defense of a “prior action pending” with regard to assignor Garcia by failing to raise the defense in its answer or in a pre-answer motion to dismiss (see CPLR 3211 (e); Charlton v United States Fire Ins. Co., 223 AD2d 404 [1996]). While defendant’s documentary submissions are sufficient to raise issues of fact with respect to its defenses that plaintiff is a fraudulently licensed corporation and that the medical services were provided by an independent contractor, they are insufficient to warrant judgment as a matter of law on these issues. [*2]
Defendant is entitled to discovery insofar as relevant to the foregoing defenses, as above indicated. This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: August 10, 2006