Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. 2013 NY Slip Op 50359(U) Decided on March 12, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
570898/11.

Innovative MR Imaging, P.C., a/a/o Michael Varricchio, Plaintiff-Respondent, - -

against

New York Central Mutual Fire Insurance Company,Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 16, 2011, which denied its motion to dismiss the complaint pursuant to CPLR 3211.

Per Curiam.

Order (Fernando Tapia, J. ), entered March 16, 2011, affirmed, with $10 costs.

Accepting plaintiff's allegations as true, and according them the benefit of every favorable inference, as we must in the context of a motion to dismiss on the pleadings (see Leon v Martinez, 84 NY2d 83, 87—88 [1994]), we find the complaint, as amplified by the affidavit in opposition of plaintiff's billing manager (see Commissioners of State Ins. Fund v Wojciech Perkowski, Inc., 291 AD2d 219 [2002]), sufficient to state a cause of action for recovery of first-party no-fault benefits. Nor was the affidavit of defendant's no-fault litigation examiner so "essentially undeniable" as to qualify as documentary evidence that conclusively refutes any claim that plaintiff might have (see Mason v First Cent. Nat. Life Ins. Co. of New York, 86 AD3d 854, 855 [2011]; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3211:10, at 21—22).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013