Charles Deng Acupuncture, P.C. v. 21st Century Ins. Co.

Full title: Charles Deng Acupuncture, P.C., as Assignee of Antoine, Francoise…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Sep 15, 2017

2017 N.Y. Slip Op. 51197 (N.Y. App. Term 2017)

66 N.Y.S.3d 652

Opinion

2014-2019 Q C

09-15-2017

Charles Deng Acupuncture, P.C., as Assignee of Antoine, Francoise, Respondent-Appellant, v. 21st Century Insurance Company, Appellant-Respondent.

Law Office of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for appellant-respondent. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent-appellant.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ

PRESENT: :

Law Office of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for appellant-respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent-appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 28, 2014. The order, insofar as appealed from by defendant and as limited by its brief, granted the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 and denied the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint. The order, insofar as cross-appealed from by plaintiff, denied the branches of plaintiff's motion seeking summary judgment on the remainder of the complaint and granted the branches of defendant's cross motion seeking summary judgment dismissing the remainder of the complaint.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as reviewed, is modified by providing that the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 is denied; as so modified, the order is affirmed, without costs.

Insofar as is relevant to this appeal in an action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of an order of the Civil Court entered July 28, 2014 as granted the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 and denied the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint. Plaintiff's cross appeal, from so much of the order as denied the remaining branches of plaintiff's motion and granted the remaining branches of defendant's cross motion, is dismissed as abandoned.

On this record, there is a triable issue of fact as to whether defendant properly denied plaintiff's claim for $80.

Accordingly, the order, insofar as reviewed, is modified by providing that the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80 is denied. PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 15, 2017