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Compas Medical, P.C. As Assignee of Jean Alberic, Respondent v. Mercury Ins. Co.

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 21, 2013

COMPAS MEDICAL, P.C. AS ASSIGNEE OF JEAN ALBERIC, RESPONDENT, --
v.
MERCURY INS. CO., APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 17, 2011.

Compas Med., P.C. v Mercury 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2013

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

The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion to dismiss plaintiff's complaint, pursuant to CPLR 3211 (a) (7), on the ground that the complaint failed to sufficiently establish the transactions that gave rise to the causes of action.

As noted by the Civil Court, on a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true, and provide the plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "The test to be applied is whether the complaint gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments" (JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2010] [internal quotation marks and citation omitted]). Contrary to defendant's arguments both in the Civil Court and on appeal, the complaint in this case did state a cognizable cause of action and was sufficient to give defendant notice of the transactions intended to be proved.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: March 21, 2013

20130321

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