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Davidov Medical, P.C. As Assignee of Marat Kishinevsky v. Firemans Fund Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 16, 2010

DAVIDOV MEDICAL, P.C. AS ASSIGNEE OF MARAT KISHINEVSKY,
APPELLANT,
v.
FIREMANS FUND INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated October 6, 2008.

Davidov Med., P.C. v. Firemans Fund Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2010

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ

The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, contending that it had already paid the bills at issue. The Civil Court granted defendant's motion, and the instant appeal by plaintiff ensued.

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case (see CPLR 3212; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Only if the proponent meets this burden, will the burden shift to the party opposing summary judgment, who must then establish the existence of a material issue of fact, through evidentiary proof in admissible form, that would require a trial of the action (see Zuckerman v City of New York, 49 NY2d at 562). If the proponent fails to make out its prima facie case for summary judgment, its motion must be denied, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Upon a review of the record, we find that defendant did not make a prima facie showing that it had paid the four specific bills alleged by plaintiff in its complaint to be outstanding. Accordingly, defendant's motion should have been denied (see Alvarez v Prospect Hosp., 68 NY2d at 324).

Steinhardt, J.P., Pesce and Weston, JJ., concur.

Decision Date: December 16, 2010

20101216

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