New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
December 7, 2012
ALEV MEDICAL SUPPLY, INC. AS ASSIGNEE OF MUHAMMAD RAUF, APPELLANT, --
AMERICAN TRANSIT INSURANCE COMPANY, RESPONDENT.
Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated August 1, 2011.
Alev Med. Supply, Inc. v American Tr. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2012
PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ
The order granted defendant's motion for, in effect, 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, the District Court, by order dated December 10, 2010, stayed the action and required plaintiff to file proof, within 90 days of the date of the order, that its assignor had filed an application with the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. The order further provided that, in the event plaintiff failed to do so, defendant's motion for summary judgment dismissing the complaint would be granted unless plaintiff showed good cause why the complaint should not be dismissed.
Thereafter, defendant moved for, in effect, summary judgment dismissing the complaint, asserting that plaintiff had failed to comply with the prior order. As plaintiff failed to demonstrate in opposition to defendant's instant motion that its assignor had made such an application, and did not show good cause why the complaint should not be dismissed, the District Court properly granted defendant's motion for, in effect, summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50764[U] [App Term, 9th & 10th Jud Dists 2012]). Accordingly, the order is affirmed.
LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 07, 2012
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