July 2, 2021

Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50641(U))

https://www.beynensonlaw.com/case-law/westchester-radiology-imaging-p-c-v-global-liberty-ins-co-of-n-y-2021-nyslip-op-50641u/

Court: Appellate Term, Second Department
Decided: July 2, 2021
Citation: 2021 NY Slip Op 50641(U)
Posture: Summary judgment
Issues: Discovery and procedure

Cite as

Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y., 2021 NY Slip Op 50641(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The rule against successive summary judgment motions does not apply when the court did not consider the insurer's initial cross motion. In this action for assigned no-fault benefits, the Civil Court, Kings County, had treated an untimely cross motion only as opposition to the provider's motion. It later denied the insurer's separate summary judgment motion as moot. The Appellate Term, Second Department, reversed and remitted for a determination on the merits. The prior statement that the case would proceed to trial on defenses raised in the denials effectively made CPLR 3212 (g) findings limiting the trial; it neither required a trial nor decided a litigated issue constituting binding law of the case.

Reported in New York Official Reports at Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50641(U))

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

Westchester Radiology and Imaging, P.C., as Assignee of Carlos Tavarez and Lorena Tomola, Respondent,
against
Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019, as amended by order of that court dated June 19, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. After the parties stipulated to adjourn plaintiff’s motion, and two months after the deadline provided for in the stipulation, defendant served a cross motion for summary judgment dismissing the complaint. In an order entered June 2, 2017, the Civil Court (Robin Kelly Sheares, J.) declined to consider defendant’s cross motion, treated defendant’s submission as opposition to plaintiff’s motion, denied plaintiff’s motion for summary judgment, and stated that plaintiff “made out their prima facie case for all purposes in this matter” and that the “[c]ase shall proceed to trial on the defenses raised in NF-10s.”

Defendant thereafter moved for summary judgment dismissing the complaint. By order dated April 3, 2019 and entered April 5, 2019, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion as moot on the ground that the June 2, 2017 order had denied its previous cross motion for summary judgment and that defendant “cannot move again for summary judgment.” By order dated June 19, 2019, the court “sua sponte supplement[ed] its April 3, 2019 order” and stated that “defendant’s attempt to submit a second motion for summary judgment . . . [*2]would effectively nullify [the] June 2, 2017 order.”

The Civil Court denied defendant’s motion based, in part, upon the rule against successive motions for summary judgment (see e.g. Williams v City of White Plains, 6 AD3d 609, 609 [2004]; Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2004]). However, that rule does not apply here because defendant’s initial cross motion for summary judgment was not considered by the court. The Civil Court also denied defendant’s motion based upon law of the case. However, the statement in the June 2, 2017 order that the “[c]ase shall proceed to trial on the defenses raised in the NF-10s” is not a directive that the matter proceed to trial. Rather, it is a directive as to what will happen at trial, as the court, in effect, made CPLR 3212 (g) findings in plaintiff’s favor limiting the trial to those defenses (see Maxford, Inc. v Erie Ins. Co. of NY, 60 Misc 3d 135[A], 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Moreover, the statement is not a judicial determination that decided an issue being litigated by the parties, and is therefore not the kind of determination that is binding law of the case (see generally People v Evans, 94 NY2d 499 [2000]). Thus, defendant’s instant motion, contrary to the Civil Court’s determination, is not moot.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U)) FollowedThe insurer failed to establish that it would not have issued the same policy had accurate residence and garaging information been disclosed.

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