Damadian MRI in Garden City v Windsor Group Ins.

[*1] Damadian MRI in Garden City v Windsor Group Ins. 2004 NY Slip Op 50266(U) Decided on April 9, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-862 Q C

DAMADIAN MRI IN GARDEN CITY, P.C. a/a/o SHARON GAMBOA, Respondent,

against

WINDSOR GROUP INSURANCE, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered March 19, 2003, denying its motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment deemed an appeal from the judgment, entered pursuant to said order, on May 14,

2003, awarding plaintiff the principal sum of $1,791.73 (see CPLR 5501 [c]).

Judgment unanimously reversed without costs, so much of the order, entered March 19, 2003, as granted plaintiff's cross motion for summary judgment vacated, plaintiff's cross motion denied and matter remanded to the court below for
all further proceedings.

Plaintiff commenced this action to recover $1,791.73, in first-party no-fault benefits for medical services it rendered to its assignor, as well as statutory interest and attorney's fees, pursuant to Insurance Law § 5101 et seq. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered March 19, 2003, the court
below denied the motion and granted the cross motion. A judgment was
subsequently entered pursuant to said order on May 14, 2003 awarding plaintiff the sum of $2,485.08. [*2]

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment inasmuch as it did not show that the assignor made an assignment to plaintiff Damadian MRI in Garden City, P.C. The assignment form herein names the assignee merely as "Damadian MRI." Although
the assignment demonstrates plaintiff's standing to sue sufficient to withstand a
motion to dismiss (see e.g. Neuro Care Assoc. v State Farm Ins. Co., NYLJ, June
25, 1998 [App Term, 2d & 11th Jud Dists]), it raises a question of fact as to whether plaintiff is the same entity as the one named in the assignment.

We note that defendant's notices for examinations under oath did not
toll the statutory period inasmuch as at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs.
PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]).

In view of the foregoing, plaintiff's cross motion for summary judgment should have been denied. Moreover, defendant's motion for summary judgment dismissing the complaint was properly denied as its remaining contentions lack merit (see Damadian MRI in Garden City, P.C. v Windsor Group Ins., No. 2003-717 Q C, decided herewith).
Decision Date: April 09, 2004