Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered March 10, 2009.
R.D.K. Med., P.C. v NY Cent. Mut. Fire Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2011
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The order granted defendant's motion for summary judgment dismissing the complaint and, in effect, denied as academic plaintiff's cross motion to amend the caption and for discovery.
ORDERED that the order is reversed, without costs, defendant's motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Civil Court for a determination of plaintiff's cross motion to amend the caption and for discovery, and for all further proceedings.
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 a declaratory judgment, entered on default prior to the commencement of this action, barred plaintiff and its assignor from recovering no-fault benefits for claims arising from a series of automobile incidents which, the Supreme Court concluded, were staged to defraud defendant. Plaintiff cross-moved to amend the caption and for discovery. The Civil Court granted defendant's motion to dismiss the complaint and implicitly denied plaintiff's cross motion as academic.
The claims underlying the present action are based on services provided to a person alleged to have been injured in an automobile incident on February 7, 2003, which is not among the incidents listed in the declaratory judgment as having been staged to defraud. Defendant did not deny that it issued denial of claim forms, in relation to the bills at issue herein, which recite that the underlying incident occurred on February 7, 2003. Consequently, defendant's motion for summary judgment should have been denied as defendant's motion papers failed to establish, prima facie, that this action is barred by virtue of the declaratory judgment.
Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Civil Court for a determination of plaintiff's cross motion and for all further proceedings.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 25, 2011
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