November 30, 2018

Performance Plus Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51771(U))

Headnote

The relevant facts considered by the court were that Performance Plus Medical, P.C. was seeking to recover assigned first-party no-fault benefits from American Transit Ins. Co. The main issue decided was whether defendant had issued an insurance policy covering the subject loss. The holding of the court was that the order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint was affirmed, with costs of $25. The court found that the proof submitted by defendant was sufficient to demonstrate that it had not issued a policy covering the subject loss, and therefore, the order was affirmed.

Reported in New York Official Reports at Performance Plus Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51771(U))

Performance Plus Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51771(U)) [*1]

Performance Plus Med., P.C. v American Tr. Ins. Co.

2018 NY Slip Op 51771(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-985 Q C

Performance Plus Medical, P.C., as Assignee of Augustine, Gregory, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 27, 2015. 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 affirmed, with $25 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 defendant had not issued an insurance policy covering the subject loss.

Contrary to plaintiff’s argument as to defendant’s cross motion, the proof submitted by defendant was sufficient to demonstrate that it had not issued a policy covering the subject loss (see e.g. New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018