September 9, 2011

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U))

Headnote

The court considered the motion for summary judgment filed by the defendant in relation to a complaint brought by the plaintiff to recover first-party no-fault benefits. The main issue in this case was whether the medical supplies provided by the plaintiff to its assignor were medically necessary. The court held that the defendant's submissions established prima facie that the medical supplies were not medically necessary, and the plaintiff failed to present evidence to raise a triable issue of fact in opposition. Additionally, the court found that the medical report relied upon by the plaintiff was not properly sworn and should not have been considered. Therefore, the court granted the defendant's motion for summary judgment and dismissed the complaint.

Reported in New York Official Reports at Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U))

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U)) [*1]

Triangle R Inc. v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 51663(U)

Decided on September 9, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
570308/11.

Triangle R Inc. a/a/o Michael Torres, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 20, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 20, 2010, insofar as appealed from, reversed, with $10 costs, defendant’s motion for summary judgment granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action by plaintiff to recover assigned first-party no-fault benefits, defendant’s submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [2010]; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] [2009]). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2011