Masigla v Ameriprise Auto & Home

[*1] Masigla v Ameriprise Auto & Home 2017 NY Slip Op 51757(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2083 Q C

Maria S. Masigla, P.T., as Assignee of Edouard, Nadia, Appellant,

against

Ameriprise Auto & Home, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 8, 2014. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment upon the first, third and fourth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first, third and fourth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff's motion seeking summary judgment upon the first, third and fourth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUO).

For the reasons stated in Renelique v Utica Mut. Ins. Co. (53 Misc 3d 141[A], 2016 NY Slip Op 51530[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the branches of [*2]defendant's cross motion seeking summary judgment dismissing the first, third and fourth causes of action should not have been granted based on plaintiff's failure to appear for EUOs. However, the branches of plaintiff's motion seeking summary judgment upon those causes of action were properly denied, as plaintiff failed to establish that the additional ground upon which the claims at issue had been denied lacks merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first, third and fourth causes of action are denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017