Reported in New York Official Reports at Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Ameriprise Insurance, Appellant.
Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 20, 2018, deemed from a judgment of that court entered May 24, 2018 (see CPLR 5512 [a]). The judgment, entered pursuant to the April 20, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $248.69.
ORDERED that the judgment is reversed, with $30 costs, the order entered April 20, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.
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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered April 20, 2018 which denied defendant’s motion and granted plaintiff’s cross motion. We deem the notice of appeal from the order entered April 20, 2018 to be from a judgment which was subsequently entered on May 24, 2018 in favor of plaintiff in the principal sum of $248.69 (see CPLR 5512 [a]).
In its motion, defendant established that the EUO scheduling letters had been mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for the EUO scheduled for June 8, 2016 and the EUO scheduled for July 29, 2016 which had been moved to Brooklyn at plaintiff’s request (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that plaintiff’s claim for services rendered on October 6, 2016 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2011]). As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing.
Accordingly, the judgment is reversed, the order entered April 20, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Childs Play of New City Patricia Riley-Tesi, OTR/L v Global Liberty Ins. (2020 NY Slip Op 50989(U))
| Childs Play of New City Patricia Riley-Tesi, OTR/Lv Global Liberty Ins. |
| 2020 NY Slip Op 50989(U) [68 Misc 3d 130(A)] |
| Decided on August 28, 2020 |
| 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 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1286 K C
against
Global Liberty Insurance, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 17, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
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 plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. By order entered April 17, 2018, the Civil Court, insofar as is relevant to this appeal, denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established timely mailing of the denial of claim forms.
For the reasons stated in Colin, as Assignee of Tyrell Sloan v Global Liberty Ins. Co. of NY (___ Misc 3d ___, 2020 NY Slip Op ______ [appeal No. 2018-2315 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Solution Bridge, Inc. v Nationwide Ins. (2020 NY Slip Op 50988(U))
| Solution Bridge, Inc. v Nationwide Ins. |
| 2020 NY Slip Op 50988(U) [68 Misc 3d 130(A)] |
| Decided on August 28, 2020 |
| 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 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-837 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 23, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s 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, defendant moved for summary judgment dismissing the complaint, arguing that plaintiff had failed to appear for examinations under oath (EUOs) and that the action was premature because plaintiff had failed to provide requested verification. Plaintiff cross-moved for summary judgment. By order entered January 23, 2018, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature due to plaintiff’s failure to provide requested verification and denied plaintiff’s cross motion.
Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, as plaintiff argues, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see id.). In light of the foregoing, there is a triable issue of fact as to whether the 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]). Plaintiff’s remaining contention lacks merit (see Frankel v Stavsky, 40 AD3d 918 [2007]).
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Reported in New York Official Reports at Matter of Advanced Orthopaedics PLLC v Unitrin Advantage Ins. Co. (2020 NY Slip Op 51017(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
Unitrin Advantage Insurance Company, Respondent.
Law Offices of Jonathan B. Seplowe, Esq. (Alan M. Elis of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Timothy R. Bishop of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 11, 2019. The order denied a petition to vacate a master arbitrator’s award, dated September 12, 2018, in a CPLR 7511 proceeding. The appeal was taken to the Appellate Term, Second, Eleventh and Thirteenth Judicial Districts and was transferred to this court by a decision and order on motion of that court dated January 23, 2020 (2020 NY Slip Op 61944[U]).
ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated September 12, 2018, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claim to recover assigned first-party no-fault benefits. The District Court denied the petition.
We initially note that, contrary to respondent’s contention, it is well settled that arbitration under the no-fault law is compulsory (see Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695 [2019]; Barry Rubin, M.D., P.C. v Met Life Auto & Home Ins. Co., 26 Misc 3d 138[A], 2010 NY Slip Op 50223[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). “A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981])” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Applying this standard, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). Consequently, the Civil Court properly denied the petition to vacate the master arbitrator’s award.However, upon [*2]denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).
Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator’s award.
We note that a proceeding to vacate or to confirm an arbitrator’s award is a special proceeding brought pursuant to CPLR article 4 and should, therefore, terminate in a judgment rather than an order (see CPLR 411).
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 27, 2020
Reported in New York Official Reports at Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co. (2020 NY Slip Op 50946(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Pearl Holding Group Managing General Agent for Ocean Harbor Casualty Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gallo, Vitucci & Klar, LLP (Richard E. Weber and Marissa Dunderdale of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered March 18, 2019. 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 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 the automobile insurance policy in question had been issued in Florida and that, pursuant to Florida law, there was a lack of coverage due to the valid rescission of the automobile insurance policy and the refund of the insured’s premiums. Plaintiff appeals from an order of the Civil Court entered March 18, 2019 which denied plaintiff’s motion and granted defendant’s cross motion.
It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policyholder had applied for automobile insurance, he did not reside at the Florida address listed on his insurance application, and that the insured vehicle was not being garaged in Florida [*2]for the period stated on the application. Subsequent to defendant’s investigation, it initiated a declaratory judgment action in Florida Circuit Court in Broward County in which a final judgment was entered declaring the subject policy null and void based on the applicant’s misrepresentations in procuring the policy. Defendant then rescinded the policy ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in the application for insurance.
It is undisputed by the parties that Florida law applies. Inasmuch as defendant’s cross motion papers demonstrated that a rescission notice was sent to the insured, and that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]).
Plaintiff’s remaining arguments are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50944(U))
| Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50944(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-2059 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered August 8, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50943(U))
| A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50943(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1955 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, P.C. (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 31, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50942(U))
| A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50942(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1954 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 29, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50941(U))
| Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50941(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1951 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 31, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020
Reported in New York Official Reports at Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. (2020 NY Slip Op 50940(U))
| Psychmetrics Med., P.C. v State Farm Mut. Ins. Co. |
| 2020 NY Slip Op 50940(U) [68 Misc 3d 129(A)] |
| Decided on August 14, 2020 |
| 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 14, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1947 Q C
against
State Farm Mutual Insurance Co., Respondent.
Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Phillip Hom, J.), entered May 29, 2018. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches.
ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
Insofar as is relevant to the appeal in this action by a provider to recover assigned first-party no-fault benefits, defendant moved to, among other things, dismiss the complaint on the ground of laches, based on plaintiff’s delay in prosecuting the action. The Civil Court granted this branch of defendant’s motion and found that the remaining branches of the motion were moot.
For the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. (66 Misc 3d 147[A], 2020 NY Slip Op 50238[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of laches is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 14, 2020