Compas Med., P.C. v. Am. Transit Ins. Co.

Full title: Compas Medical, P.C., as Assignee of Pierre, Jean, Appellant, v. American…

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

Date published: Sep 15, 2017

2017 N.Y. Slip Op. 51193 (N.Y. App. Term 2017)

66 N.Y.S.3d 652

Opinion

2014-1835 Q C

09-15-2017

Compas Medical, P.C., as Assignee of Pierre, Jean, Appellant, v. American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

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

PRESENT: :

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2014. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and, in effect, granted the branches of defendant's cross motion seeking summary judgment dismissing the first, second, fifth, sixth and seventh causes of action based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers' Compensation Board, those causes of action shall be dismissed.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff's motion for summary judgment, and, in effect, granted the branches of defendant's cross motion seeking summary judgment dismissing the first, second, fifth, sixth and seventh causes of action based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers' Compensation Board, those causes of action shall be dismissed.

Contrary to plaintiff's argument, the proof submitted by defendant was sufficient to raise an issue of fact as to whether defendant had ever received the claims underlying the third and fourth causes of action; thus, the Civil Court correctly denied the branches of plaintiff's motion seeking summary judgment on these causes of action.

For the reasons stated in Compas Med., P.C., as Assignee of Pierre, Jean v American Tr. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1830 Q C], decided herewith), we find that the remainder of the order, insofar as appealed from, was also correctly decided.

In light of the foregoing, plaintiff's remaining contentions are academic.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 15, 2017