Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51602(U))
| Omphil Care, Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51602(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2290 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 13, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 13, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Plaintiff correctly contends that defendant’s cross-moving papers failed to establish, as a matter of law, that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defense. Consequently, defendant is not entitled to summary judgment. However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51598(U))
| Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51598(U) [53 Misc 3d 145(A)] |
| Decided on October 31, 2016 |
| 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 October 31, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2015-350 S C
against
National Liability & Fire Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated December 23, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In opposition, plaintiff argued with respect to those causes of action that defendant had failed to establish that it had timely mailed its IME scheduling letters and denial of claim forms. By order dated December 23, 2014, the District Court, among other things, denied those branches of defendant’s motion.
Upon a review of the record, we find that defendant failed to establish as a matter of law that the IME scheduling letters at issue had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, as defendant did not demonstrate that its 30-day period to pay or deny the claims had been tolled, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: October 31, 2016
Reported in New York Official Reports at Renelique v Lancer Ins. Co. (2016 NY Slip Op 51596(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Lancer Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 11, 2014. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3126.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant answered the complaint and served demands for discovery, including a notice to take the deposition of plaintiff. Thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to provide discovery. Defendant argued in support of its motion that it sought plaintiff’s testimony as well as documentary evidence in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits. By order entered March 31, 2014, the Civil Court granted defendant’s unopposed motion and directed plaintiff to “provide discovery responses to outstanding discovery demands within 60 days.”
When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the March 31, 2014 order. On September 9, 2014, plaintiff served its opposition to the motion along with written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court, entered December 11, 2014, which, among other things, granted defendant’s motion and dismissed the complaint.
The determination of whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the motion court (see CPLR 3126; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922 [2012], Giano v Ioannou, 78 AD3d 768 [2010], Fishbane v Chelsea Hall, LLC, 65 AD3d 1079 [2009]; Mir v Saad, 54 AD3d 914 [2008]; see also Kihl v Pfeffer, 94 NY2d 118 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: October 31, 2016
Reported in New York Official Reports at Infinity Chiropractic Health, P.C. v Republic W. Ins. Co. (2016 NY Slip Op 51564(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Republic Western Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 4, 2013. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action are granted.
Plaintiff commenced this action to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on July 16, 2010. Shortly before plaintiff brought this action, defendant had commenced a declaratory judgment action in the Supreme Court, New York County, naming, among others, various medical providers, including plaintiff herein, and the three assignors herein, and seeking a declaration that defendant owed no duty to pay first-party no-fault claims with respect to the July 16, 2010 accident. By order entered December 20, 2011, the Supreme Court granted, on default, defendant’s motion for the entry of a default declaratory judgment against, insofar as is relevant, Infinity Chiropractic Health, P.C., Lucky Johnson and Demetrius McClammy, but not as against Lawrence Jones, individually.
Defendant subsequently moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrines of res judicata and collateral estoppel by virtue of the Supreme Court order in the declaratory judgment action. By order entered October 4, 2013, the Civil Court granted the branches of defendant’s motion seeking dismissal of the first through fourth causes of action, which pertained to assignors Demetrius McClammy and Lucky Johnson. However, insofar as is relevant to this appeal, the Civil Court denied the branches of defendant’s unopposed motion seeking summary judgment dismissing the fifth through eighth causes of action, which causes of action related to services that plaintiff had rendered to assignor Lawrence Jones, on the ground that the order in the declaratory judgment action had not been granted as against Lawrence Jones, individually. Defendant appeals from so much of the order as denied the branches of its motion seeking summary judgment dismissing the fifth through eighth causes of action.
The doctrine of res judicata is designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 772 [5th ed]). Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which was raised or could have been raised in the prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304, 306-207 [1929]). Furthermore, the doctrine of res judicata is applicable to an order or judgment taken by default which has not been vacated (see Matter of Hunter, 4 NY3d at 269; Barbieri v Bridge Funding, 5 AD3d 414, 415 [2004]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Plaintiff was named and served in the declaratory judgment and ultimately defaulted therein. As plaintiff’s right to recover as an assignee of Lawrence Jones was fully litigated in the Supreme Court action, notwithstanding defendant’s admitted failure to serve Lawrence Jones individually in that action, and notwithstanding that the declaratory judgment made no determination as against Lawrence Jones, individually, the order in the declaratory judgment action was a conclusive final determination barring plaintiff from recovering for any services it rendered to Lawrence Jones arising from the July 16, 2010 accident. Consequently, plaintiff’s claims underlying the fifth through eighth causes of action are barred (see Uffer v Travelers Cos., Inc., 88 AD3d 690, 691 [2011]; EBM Med. Health Care, P.C., 38 Misc 3d at 3).
Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action are granted.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: October 21, 2016
Reported in New York Official Reports at Ave T MPC Corp. v Prudential Prop. & Cas. Ins. Co. (2016 NY Slip Op 51563(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Prudential Property and Casualty Ins. Co., Respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 21, 2010. The judgment, entered pursuant to a July 1, 2010 order of the same court granting defendant’s CPLR 3126 motion, dismissed the complaint.
ORDERED that, on the court’s own motion, the notice of appeal from the order dated July 1, 2010 is deemed a premature notice of appeal from the judgment entered September 21, 2010 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation pursuant to which plaintiff agreed to provide defendant with legible copies of the claims at issue or be precluded from offering such evidence at trial. Thereafter, defendant moved, among other things, to compel plaintiff to provide legible copies of the claims. By order entered October 9, 2009 (Lewis L. Douglass, J.H.O.), plaintiff was required to serve defendant with legible copies of the claim forms at issue, or provide defendant with an affidavit from plaintiff setting forth why plaintiff was unable to do so, within 60 days of the date of the order, or be precluded from offering “such evidence” should a judge find the explanation set forth in the affidavit from plaintiff to be insufficient. After plaintiff failed to provide defendant with either legible copies of the claim forms or an affidavit setting forth why plaintiff was unable to provide same, defendant moved, pursuant to CPLR 3126, to preclude plaintiff and to dismiss the complaint, asserting that plaintiff had failed to timely comply with the order; that, as a consequence, plaintiff was precluded from offering any evidence; and that, therefore, plaintiff could not establish its prima facie case. In opposition, a representative of plaintiff explained, in an affidavit, why plaintiff was unable to provide legible copies of the claim forms, without offering any explanation for its failure to comply with the 60-day requirement of the order, or indicating when, or if, plaintiff had previously served that affidavit upon defendant. By order entered July 1, 2010, the Civil Court granted defendant’s motion. A judgment was entered pursuant to the order on September 21, 2010.
The order entered October 9, 2009 unambigously provided that plaintiff would be precluded from using the claim forms at issue if plaintiff failed to comply with the stipulation. The record fails to establish that, within the 60-day time period set forth in the stipulation, plaintiff either produced legible copies of the claim forms or provided an affidavit setting forth [*2]why it could not provide legible copies of the claim forms. We note that the affidavit attached to plaintiff’s opposition papers was served upon defendant over six months beyond the time permitted by the order. Consequently, we find no basis to reverse the judgment.
Accordingly, the judgment is affirmed.
Elliot, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: October 21, 2016
Reported in New York Official Reports at J.K.M. Med. Care, P.C. v Interboro Ins. Co. (2016 NY Slip Op 26348)
| J.K.M. Med. Care, P.C. v Interboro Ins. Co. |
| 2016 NY Slip Op 26348 [54 Misc 3d 35] |
| Accepted for Miscellaneous Reports Publication |
| Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 15, 2017 |
[*1]
| J.K.M. Medical Care, P.C., as Assignee of James Stokes, Respondent, v Interboro Insurance Company, Appellant. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 21, 2016
APPEARANCES OF COUNSEL
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondent.
{**54 Misc 3d at 36} OPINION OF THE COURT
Ordered that the order is modified by vacating so much thereof as denied the branch of defendant’s motion seeking the entry of a satisfaction of judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of that branch of defendant’s motion in accordance with the decision herein.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by virtue of a November 21, 2011 judgment which had been entered against plaintiff in a declaratory judgment action in the Supreme Court, Nassau County. Plaintiff cross-moved for summary judgment. By order dated April 23, 2014, the Civil Court (Robin S. Garson, J.) denied defendant’s motion and granted plaintiff’s cross motion, directing plaintiff to enter judgment in the principal sum of $556.78, plus statutory interest and attorney’s fees. In July 2014, plaintiff submitted a proposed judgment in the total sum of $988.34. A judgment was ultimately entered on September 19, 2014 in the sum of $993.34.
In August 2014, prior to the entry of judgment in this action, defendant moved for summary judgment dismissing the complaint, as the amount which was due and owing had been satisfied, or, in the alternative, in the event that a judgment had been entered while defendant’s motion was pending, for an order granting it a satisfaction of such entered judgment, pursuant to CPLR “5020 (c),”[FN*] and plaintiff opposed the motion. By order entered April 23, 2015, the Civil Court denied defendant’s{**54 Misc 3d at 37} motion in its entirety on the ground that it was an improper successive motion for summary judgment.
Although defendant’s second motion sought summary judgment dismissing the complaint, defendant sought such relief only in the event that no judgment had been entered while its motion was pending. Since a judgment had been entered on September 19, 2014, defendant’s request for primary relief in the form of summary judgment became academic, and, thus, the branch of defendant’s motion seeking the alternative relief requested, i.e., for an order, pursuant to CPLR 5021 (a) (2), directing the entry of a satisfaction of judgment, became operative. However, in denying defendant’s motion in its entirety, the Civil Court did not consider the merits of the branch of defendant’s motion seeking the alternative relief of the entry of a satisfaction of judgment. Consequently, the matter is remitted to the Civil Court for a determination thereof.
Accordingly, the order is modified by vacating so much thereof as denied the branch of defendant’s motion seeking the entry of a satisfaction of judgment, and the matter is remitted to the Civil Court for a new determination of that branch of defendant’s motion.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Footnotes
Footnote *:In the appellate brief, defendant states that it had made a “scrivener’s error” in misciting the applicable CPLR provision, and had actually sought relief under CPLR 5021 (a) (2).
Reported in New York Official Reports at Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))
| Five Boro Med. Equip., Inc. v Praetorian Ins. Co. |
| 2016 NY Slip Op 51481(U) [53 Misc 3d 138(A)] |
| Decided on October 19, 2016 |
| 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 October 19, 2016
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570196/16
against
Praetorian Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered April 1, 2015, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Carol R. Feinman, J.), entered April 1, 2015, reversed, with $10 costs, and defendant’s motion denied.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to adequately state the basis of their recollection, some three years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 19, 2016
Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U))
| Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. |
| 2016 NY Slip Op 51479(U) [53 Misc 3d 137(A)] |
| Decided on October 19, 2016 |
| 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 October 19, 2016
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570200/16
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered July 6, 2015, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Alexander M. Tisch, J.), entered July 6, 2015, reversed, with $10 costs, and defendant’s motion denied.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to show that the scheduling of the IMEs complied with the procedures and time frames set forth in Insurance Department Regulations (11 NYCRR) § 65-3.5(d); see American Tr. Ins. Co. v Vance, 131 AD3d 849 [2015]; American Tr. Ins. Co. v Longevity, 131 AD3d 841 [2015]; Acupuncture, Approach, P.C. v Allstate Ins. Co., 46 Misc 3d 151[A], 2015 NY Slip Op 50318[U] [App Term, 1st Dept. 2015]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests. Although this issue was raised for the first time on appeal, it presents a question of law which this Court can review (see American Tr. Ins. Co. v Longevity, 131 AD3d at 841-842).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 19, 2016
Reported in New York Official Reports at Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51533(U))
| TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51533(U) [53 Misc 3d 142(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-638 Q C
against
National Liability & Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered March 4, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
For the reasons stated in TAM Med. Supply Corp., as Assignee of Melisa Abdoul v National Liability & Fire Ins. Co. (____ Misc 3d _____, 2016 NY Slip Op ______ [appeal No. 2014-635 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Tam Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51532(U))
| TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51532(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-635 Q C
against
National Liability & Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s argument on appeal, defendant demonstrated, prima facie, that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit by plaintiff’s owner was sufficient to give rise to a presumption that the requested verification had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016