Atlantic Radiology Imaging, P.C. v Travelers Home

[*1] Atlantic Radiology Imaging, P.C. v Travelers Home 2014 NY Slip Op 51002(U) Decided on June 13, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2011-2940 K C

Atlantic Radiology Imaging, P.C. as Assignee of ANEITA WILLIAMS, Appellant,

against

Travelers Home AND MARINE INSURANCE COMPANY, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 6, 2011. The judgment, entered pursuant to an order of the same court dated February 10, 2011 which, on the court's own motion, converted defendant's motion to dismiss the complaint, made pursuant to CPLR 3211 (a) (7), into one for summary judgment and thereupon granted defendant's motion, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order dated February 10, 2011 is vacated, and defendant's motion, pursuant to CPLR 3211 (a) (7), to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint on the ground that plaintiff had failed to respond to properly and timely mailed requests and follow-up requests for verification, and that, therefore, the action was premature. Plaintiff opposed the motion. By order dated February 10, 2011, the Civil Court, on its own motion, converted defendant's motion, pursuant to CPLR 3211 (c), into one for summary judgment dismissing the complaint, and thereupon granted defendant's motion. Plaintiff appeals from the judgment dismissing the complaint which was entered pursuant to the February 10, 2011 order.

On this record, we conclude that the Civil Court improperly converted defendant's motion to dismiss the complaint made pursuant to CPLR 3211 (a) (7) into one for summary judgment without providing "adequate notice to the parties" (CPLR 3211 [c]) that it intended to do so. Moreover, none of the recognized exceptions to the notice requirement were applicable in this case (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Accordingly, with respect to defendant's motion, this court will apply the standards governing a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) (see e.g. Vecere v Estate of Arnold Berle, 91 AD3d 637 [2012]; Velez v Captain Luna's Mar., 74 AD3d 1191 [2010]; Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 63 AD3d 703 [2009]).

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026), "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable [*2]legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "The test to be applied is whether the complaint gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments" (JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2010] [internal quotation marks and citation omitted]). Because the CPLR 3211 (a) (7) motion attacks the legal sufficiency of the complaint, a defendant's supporting affidavits dealing with issues of fact are not generally germane, since the truth of the plaintiff's factual allegations is not at issue. Where the court considers the evidentiary material submitted by a defendant in support of a CPLR 3211 (a) (7) motion, the criterion is "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Here, the complaint alleged that defendant had issued an automobile insurance policy which provided for payment of no-fault benefits, set forth the number of the applicable policy, and stated that plaintiff had rendered health services to its assignor in connection with injuries she had sustained in a motor vehicle accident. Plaintiff alleged that it had timely submitted bills and claims for payment to defendant, which had not timely denied them or requested verification, and that the total amount sought remained unpaid and outstanding. We find that the allegations of the complaint did state a cognizable cause of action and were sufficient to give defendant notice of the transactions intended to be proved (see Reed v State Farm Mut. Auto. Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52076[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Compas Med., P.C. v Mercury Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50459[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed, the order dated February 10, 2011 is vacated, and defendant's motion, pursuant to CPLR 3211 (a) (7), to dismiss the complaint is denied.

Pesce, P.J., Weston and Solomon, JJ., concur.

Decision Date: June 13, 2014