August 9, 2019

TAM Med. Supply Corp. v Kemper Ins. Co. (2019 NY Slip Op 51314(U))

Headnote

The court considered the fact that plaintiff Tam Medical Supply Corp. sought to recover first-party no-fault benefits for supplies provided to its assignor following a motor vehicle accident. The defendant insurer, Kemper, had initiated a declaratory judgment action in the Supreme Court, Bronx County, seeking a declaration that it had no obligation to pay any pending or future claims for no-fault benefits arising from the accident. The Supreme Court granted Kemper's motion for summary judgment, finding that it was not obligated to pay the claims pertaining to the accident. Subsequently, Tam moved in the Civil Court for summary judgment and Kemper cross-moved to dismiss the complaint, which the Civil Court granted. The main issue decided was whether the Civil Court's decision to deny Tam's motion for summary judgment and grant Kemper's cross motion to dismiss the complaint was correct, and the court held that it was and affirmed the judgment.

Reported in New York Official Reports at TAM Med. Supply Corp. v Kemper Ins. Co. (2019 NY Slip Op 51314(U))

TAM Med. Supply Corp. v Kemper Ins. Co. (2019 NY Slip Op 51314(U)) [*1]

TAM Med. Supply Corp. v Kemper Ins. Co.

2019 NY Slip Op 51314(U) [64 Misc 3d 146(A)]

Decided on August 9, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2019

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

PRESENT: : BERNICE D. SIEGAL, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ
2017-1168 Q C

TAM Medical Supply Corp., as Assignee of Robles, Daniel, Appellant,
against
Kemper Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered April 14, 2017. The judgment, entered pursuant to an order of that court entered November 2, 2016 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to dismiss the complaint, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

Plaintiff Tam Medical Supply Corp. (Tam) commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident on August 29, 2012. Defendant insurer (Kemper) commenced a declaratory judgment action in the Supreme Court, Bronx County, against Tam and its assignor, among others, seeking a declaration that Kemper has no obligation to pay any pending or future claims for no-fault benefits arising from an accident on August 29, 2012, and Kemper moved for summary judgment. By order dated April 11, 2016, the Supreme Court granted Kemper’s motion, finding that Kemper was not obligated to pay the claims pertaining to the August 29, 2012 accident.

Thereafter, Tam moved in the Civil Court for summary judgment and Kemper cross-m[*2]oved in the Civil Court to dismiss the complaint on the ground that Tam’s action is barred by virtue of the Supreme Court’s order which granted summary judgment to Kemper. By order entered November 2, 2016, the Civil Court denied Tam’s motion and granted Kemper’s cross motion. Tam appeals from a judgment which was subsequently entered dismissing the complaint.

For the reasons stated in Tam Med. Supply Corp., as Assignee of Robles, Daniel v Kemper Ins. Co. (__ Misc 3d __, 2019 NY Slip Op _____ [appeal No. 2017-1167 Q C], decided herewith), the judgment is affirmed.

SIEGAL, J.P., PESCE and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 09, 2019