Booth Chiropractic & Acupuncture PLLC v State Farm Mut. Auto. Ins. Co.

[*1] Booth Chiropractic & Acupuncture PLLC v State Farm Mut. Auto. Ins. Co. 2006 NY Slip Op 51673(U) [13 Misc 3d 128(A)] Decided on August 22, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1726 N C.

Booth Chiropractic & Acupuncture PLLC a/a/o Andre Rosemond, Appellant,

against

State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Howard S. Miller, J.), dated September 26, 2005. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the action. Plaintiff appeals from so much of the order as denied its motion for summary judgment. Plaintiff's motion for summary judgment was properly denied because plaintiff's submission of inconsistent affidavits from its treating physician raised a triable issue of fact (see generally Amaze Med. Supply Inc. v Eagle Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50389[U] [App Term, 2d & 11th Jud Dists]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: August 22, 2006