New Millennium Med. Imaging, P.C. v American Tr. Ins. Co.

[*1] New Millennium Med. Imaging, P.C. v American Tr. Ins. Co. 2017 NY Slip Op 51088(U) Decided on August 18, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, THOMAS P. ALIOTTA, JJ
2015-1998 K C

New Millennium Medical Imaging, P.C., as Assignee of Miguel Diaz and Jordanis Rodriguez, Appellant,

against

American Transit Ins. Co., Respondent.

Law Office of Damin J. Toell, P.C. (Damin J. Toell, Esq.), for appellant. Law Office of Daniel J. Tucker (Netanel Benchaim, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 16, 2015. The order, insofar as appealed from as limited by the brief, denied plaintiff's cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, as limited by its brief, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff's cross motion for summary judgment, upon a finding that defendant's opposition papers had raised a triable issue of fact.

Contrary to plaintiff's contention on appeal, the Civil Court did not improvidently exercise its discretion in considering defendant's late opposition papers (see CPLR 2004), which raised a triable issue of fact as to whether the claims had been timely denied.

Accordingly, the order, insofar as appealed from, is affirmed.

WESTON, J.P., PESCE and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 18, 2017