Opinion
07-02-2021
Westchester Radiology and Imaging, P.C., as Assignee of Carlos Tavarez and Lorena Tomola, Respondent, v. Global Liberty Insurance Company of New York, Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell of counsel), for respondent.
Unpublished Opinion
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant.
Petre and Zabokritsky, P.C. (Damin Toell of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019, as amended by order of that court dated June 19, 2019. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant's motion on the merits.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. After the parties stipulated to adjourn plaintiff's motion, and two months after the deadline provided for in the stipulation, defendant served a cross motion for summary judgment dismissing the complaint. In an order entered June 2, 2017, the Civil Court (Robin Kelly Sheares, J.) declined to consider defendant's cross motion, treated defendant's submission as opposition to plaintiff's motion, denied plaintiff's motion for summary judgment, and stated that plaintiff "made out their prima facie case for all purposes in this matter" and that the "[c]ase shall proceed to trial on the defenses raised in NF-10s."
Defendant thereafter moved for summary judgment dismissing the complaint. By order dated April 3, 2019 and entered April 5, 2019, the Civil Court (Odessa Kennedy, J.) denied defendant's motion as moot on the ground that the June 2, 2017 order had denied its previous cross motion for summary judgment and that defendant "cannot move again for summary judgment." By order dated June 19, 2019, the court "sua sponte supplement[ed] its April 3, 2019 order" and stated that "defendant's attempt to submit a second motion for summary judgment... would effectively nullify [the] June 2, 2017 order."
The Civil Court denied defendant's motion based, in part, upon the rule against successive motions for summary judgment (see e.g. Williams v City of White Plains, 6 A.D.3d 609, 609 [2004]; Capuano v Platzner Intl. Group, 5 A.D.3d 620, 621 [2004]). However, that rule does not apply here because defendant's initial cross motion for summary judgment was not considered by the court. The Civil Court also denied defendant's motion based upon law of the case. However, the statement in the June 2, 2017 order that the "[c]ase shall proceed to trial on the defenses raised in the NF-10s" is not a directive that the matter proceed to trial. Rather, it is a directive as to what will happen at trial, as the court, in effect, made CPLR 3212 (g) findings in plaintiff's favor limiting the trial to those defenses (see Maxford, Inc. v Erie Ins. Co. of NY, 60 Misc.3d 135 [A], 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Moreover, the statement is not a judicial determination that decided an issue being litigated by the parties, and is therefore not the kind of determination that is binding law of the case (see generally People v Evans, 94 N.Y.2d 499 [2000]). Thus, defendant's instant motion, contrary to the Civil Court's determination, is not moot.
Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant's motion on the merits.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.