February 7, 2007

Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50245(U))

Headnote

The case involved an appeal from an order of the Civil Court of the City of New York, Kings County, denying the plaintiff's motion for summary judgment in an action to recover assigned first-party no-fault benefits from Progressive Casualty Insurance Co. The appellate court affirmed the lower court's decision, stating that the plaintiff had failed to make a prima facie showing of its entitlement to summary judgment. The court found that the plaintiff's moving papers were insufficient, citing a previous case as precedent. Judge Golia concurred with the result but expressed disagreement with certain propositions of law cited in the majority decision. The holding of the court was to affirm the order denying the plaintiff's motion for summary judgment.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50245(U))

Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co. (2007 NY Slip Op 50245(U)) [*1]

Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co.

2007 NY Slip Op 50245(U) [14 Misc 3d 137(A)]

Decided on February 7, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-1995 K C. NO. 2005-1995 K C

Vista Surgical Supplies, Inc. a/a/o Caroline N. Bailey-Jones, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 21, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, the court below denied plaintiff’s motion for summary judgment on the ground that plaintiff failed to make a prima facie showing of its entitlement to summary judgment. Contrary to plaintiff’s contention, we agree with the court below that plaintiff’s moving papers were insufficient (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to follow certain propositions of law
set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: February 7, 2007