Opinion
2012-08-6
BRIGHT MEDICAL SUPPLY CO. as Assignee of Pierre–Louis Clifford, Appellant, v. GMAC INTEGON INS. CO., Respondent.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
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] ). 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 ( seeCCA 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 ( seeCPLR 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 A.D.2d 508 [1989] ).
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 N.Y.2d 574, 585 [1983];People ex rel. Stearns v. Marr, 181 N.Y. 463 [1905];Rosado v. Edmundo Castillo Inc., 54 AD3d 278 [2008];Lathrop v.. Lathrop, 271 App.Div. 807 [1946];67A N.Y. 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 dismiss the complaint is denied.