New York Diagnostic Med. Care, P.C. v Country-Wide Ins. Co.

[*1] New York Diagnostic Med. Care, P.C. v Country-Wide Ins. Co. 2015 NY Slip Op 50814(U) Decided on May 19, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
&em;

New York Diagnostic Medical Care, P.C. as Assignee of CARLOS MARTINEZ, Appellant,

against

Country-wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 20, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment, and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had not provided verification as requested by defendant.

A review of the record reveals that triable issues of fact exist, including whether plaintiff adequately responded to defendant's verification requests. Consequently, neither party is entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: May 19, 2015