Right Solution Med. Supply, Inc. v Praetorian Ins. Co.

[*1] Right Solution Med. Supply, Inc. v Praetorian Ins. Co. 2014 NY Slip Op 51793(U) Decided on December 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-559 Q C

Right Solution Medical Supply, Inc. as Assignee of SHERITA DESSELLE, Respondent,

against

Praetorian Ins. Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 18, 2012. The order, insofar as appealed from, granted the branch of plaintiff's motion seeking summary judgment on the fourth cause of action and denied defendant's cross motion for summary judgment dismissing the complaint. So much of the appeal as is from the portion of the order which granted the branch of plaintiff's motion seeking summary judgment on the fourth cause of action and denied the branch of defendant's cross motion seeking summary judgment dismissing that cause of action is deemed to be an appeal from a judgment of the same court entered February 14, 2012, awarding plaintiff the principal sum of $2,357.95 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered January 18, 2012 as granted the branch of plaintiff's motion seeking summary judgment on the fourth cause of action is vacated and that branch of plaintiff's motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal and insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered January 18, 2012, the Civil Court denied defendant's cross motion, granted the branch of plaintiff's motion seeking summary judgment on the fourth cause of action and otherwise denied plaintiff's motion. A judgment was subsequently entered on February 14, 2012, awarding plaintiff the principal sum of $2,357.95. On appeal, defendant argues that its cross motion for summary judgment dismissing the complaint should have been granted and that, in any event, the branch of plaintiff's motion seeking summary judgment on the fourth cause of action should have been denied.

Defendant argued in its cross motion that this action was premature because plaintiff had failed to comply with its verification requests. Inasmuch as a triable issue of fact exists as to whether plaintiff's responses to the verification requests were sufficient, the Civil Court properly denied defendant's cross motion, and it should have denied the branch of plaintiff's motion seeking summary judgment on the fourth cause of action.

Accordingly, the judgment is reversed, so much of the order entered January 18, 2012 as granted the branch of plaintiff's motion seeking summary judgment on the fourth cause of action [*2]is vacated and that branch of plaintiff's motion is denied. The order, insofar as reviewed on direct appeal and insofar as appealed from, is affirmed.

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

Decision Date: December 17, 2014