Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 27, 2010, deemed from a judgment of the same court entered October 5, 2010 (see CPLR 5501 [c]).
Bright Med. Supply Co. v GMAC Integon 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The judgment, entered pursuant to the July 27, 2010 order granting defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (4), dismissed the complaint.
ORDERED that the judgment is reversed, without costs, the order entered July 27, 2010 is vacated, and defendant's motion to dismiss the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered July 27, 2010 granting defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (4) on the ground that the action had been commenced by the filing of the summons and complaint (see CCA 400 [a]) in violation of a temporary restraining order (TRO) that had been issued by the Supreme Court in another action involving numerous parties, including the parties to this action. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
It is undisputed that, at the time plaintiff commenced the instant action, it had not yet been served with the TRO. In support of its motion to dismiss, defendant did not submit any proof that plaintiff was otherwise aware of the existence of the TRO or of its terms. Defendant's contention, made for the first time on appeal, that plaintiff's attorney was aware that a TRO was being sought is dehors the record and will not be considered (see Chimarios v Duhl, 152 AD2d 508 ).
Thus, as defendant failed to establish that plaintiff had knowledge, actual or imputed, of the terms of the TRO, defendant did not show that plaintiff was barred by the TRO from commencing the instant action (see Matter of McCormick v Axelrod, 59 NY2d 574, 585 ; People ex rel. Stearns v Marr, 181 NY 463 ; Rosado v Edmundo Castillo Inc., 54 AD3d 278 ; Lathrop v Lathrop, 271 App Div 807 ; 67A NY Jur 2d, Injunctions § 213; 12A Carmody-Wait 2d § 78:230, at 441-442).
We note that plaintiff asserts in its brief on appeal, and defendant does not deny, that the TRO has subsequently been lifted.
Accordingly, the judgment is reversed, the order entered July 27, 2010 is vacated, and defendant's motion to ...