Promed Orthocare Supply, Inc. v Travelers Ins. Co.

[*1] Promed Orthocare Supply, Inc. v Travelers Ins. Co. 2012 NY Slip Op 51441(U) Decided on July 18, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2435 Q C.

Promed Orthocare Supply, Inc. as Assignee of Omar Brown, Respondent,

against

Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 27, 2010, deemed from a judgment of the same court entered August 12, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 27, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion to dismiss the complaint, awarded plaintiff the principal sum of $844.13.

ORDERED that the judgment is reversed, without costs, so much of the order entered July 27, 2010 as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered July 27, 2010, granted plaintiff's motion for summary judgment and denied defendant's cross motion to dismiss the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant argues that plaintiff, a provider of durable medical equipment, was not entitled to bring this action as Omar Brown's assignee because, according to Omar Brown's sworn statement, it was not plaintiff who had provided the equipment at issue directly to him. However, plaintiff submitted an affidavit asserting that it is plaintiff's business practice for plaintiff to disperse medical supplies directly to the patient, and that the practice was followed in this case. On this record, accelerated judgment for either party is inappropriate (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the judgment is reversed, so much of the order entered July 27, 2010 as [*2]granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 2012