VS Care Acupuncture, PC v MVAIC

[*1] VS Care Acupuncture, PC v MVAIC 2016 NY Slip Op 50764(U) Decided on May 13, 2016 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
16-202

VS Care Acupuncture, PC, a/a/o Dalayshia Carr, Plaintiff-Respondent,

against

MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered October 28, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered October 28, 2015, affirmed, with $10 costs.

We sustain the denial of defendant MVAIC's motion for summary judgment dismissing this first-party no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record indicates that defendant failed to eliminate all triable issues with respect to whether plaintiff's assignor filed a notice of intention to make a claim, since its own proof contains conflicting evidence (see Center Candy, Inc. v CJB Food Mart, Inc., 50 AD3d 723 [2008]), specifically, a letter it sent to the assignor stating "we are in receipt of the Notice of Intention to Make Claim" (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Dover Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 36 Misc 3d 145[A], 2012 NY Slip Op 51619[U])[App Term, 1st Dept. 2012]). Given defendant's failure to make a prima facie showing of entitlement to judgment as a matter of law, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant's remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2016