Arguelles, M.D., P.C. v Omni Indem. Co.

[*1] Arguelles, M.D., P.C. v Omni Indem. Co. 2017 NY Slip Op 51771(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2014-2631 K C

Arguelles, M.D., P.C., as Assignee of Darvell Tribe, Appellant,

against

Omni Indemnity Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 23, 2014. The order, insofar as appealed from and as limited by the brief, upon granting the branch of defendant's motion seeking leave to renew defendant's prior motion for summary judgment dismissing the complaint, which had been denied in an order of that court dated June 5, 2013, in effect, vacated the order dated June 5, 2013, and thereupon granted defendant's motion for summary judgment.

ORDERED that the order entered June 23, 2014, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had not issued the insurance policy in question and, thus, that plaintiff had sued the wrong insurer. Plaintiff opposed the motion. In an order dated June 5, 2013, the Civil Court (Genine D. Edwards, J.) denied defendant's motion. Defendant subsequently moved for leave to renew its prior motion, contending that, after the Civil Court's order, there had been "a change in the law that would change the prior determination" (CPLR 2221 [e] [2]), referring to this court's decision in Great Health Care Chiropractic, P.C. v Omni Indem. Co. (40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As limited by its brief, [*2]plaintiff appeals from so much of an order of the Civil Court entered June 23, 2014 as, upon renewal, in effect, vacated the order dated June 5, 2013, and thereupon granted defendant's motion for summary judgment dismissing the complaint.

For the reasons stated in Tam Med. Supply Corp. v Omni Indem. Co. (48 Misc 3d 142[A], 2015 NY Slip Op 51294[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]) and Great Health Care Chiropractic, P.C. v Omni Indem. Co. (40 Misc 3d 139[A], 2013 NY Slip Op 51450[U]), the order entered June 23, 2014, insofar as appealed from, is affirmed.

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

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