American Tr. Ins. Co. v Espinal

American Tr. Ins. Co. v Espinal 2021 NY Slip Op 03399 Decided on June 01, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 01, 2021
Before: Gische, J.P., Webber, Singh, Kennedy, JJ.
Index No. 156303/19 Appeal No. 13963 Case No. 2020-04162

[*1]American Transit Insurance Company, Plaintiff-Respondent,

v

Samuel O. Espinal, Defendant-Appellant, 41 Road Rehab Acupuncture PLLC, et al., Defendants.

The Tadchiev Law Firm, P.C., Fresh Meadows (Simon B. Landsberg of counsel), for appellant.

Law Office of Daniel J. Tucker, Brooklyn (Ethan A. Rothschild of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about August 14, 2020, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment against defendant Samuel O. Espinal and declared that plaintiff was not obligated to pay no-fault benefits to Espinal, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings.

Espinal's opposition to the summary judgment motion was timely filed in accordance with CPLR 2214(b). Since the motion court granted plaintiff's motion on the ground that Espinal failed to submit opposition papers, and therefore did not reach the merits of the motion, the matter is remanded for the motion court to consider the merits of the summary judgment motion in the first instance (see Fomina v DUB Realty, LLC, 156 AD3d 539, 540 [1st Dept 2017]; Commissioner of the State Ins. Fund v Weissman, 90 AD3d 417, 418 [1st Dept 2011]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 1, 2021