Karina K. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51624(U))

Plaintiff appeals from a judgment of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered November 15, 2013, which, upon a prior order granting summary judgment, dismissed the complaint.

Per Curiam.

Judgment (Robert R. Reed, J.), entered November 15, 2013, reversed, with $30 costs, defendant’s motion denied, and the complaint reinstated.

Civil Court erred by treating defendant’s motion made pursuant to CPLR 3211(a)(1) and (7) as a motion for summary judgment without providing adequate notice to the parties (see CPLR 3211[c]; Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). The parties’ motion papers clearly indicated their intent to treat the motion as one made pursuant to CPLR 3211, and the case does not involve a purely legal question without any disputed issues of fact (see Brathwaite v Frankel, 98 AD3d 444, 445 [2012]; see also Drug Policy Alliance v The New York City Tax Commission, 131 AD3d 815 [2015]).

Treating the motion as one for dismissal pursuant to CPLR 3211, we conclude that it should have been denied. Accepting plaintiff’s allegations as true, and according them the benefit of every possible favorable inference, as we must in the context of a motion to dismiss the pleadings (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we find the complaint sufficient to state a cause of action for recovery of first-party no-fault benefits pursuant to an automobile insurance policy issued by defendant (see Genovese v State Farm Mut. Auto. Ins. Co., 106 AD3d 866, 868 [2013]; Innovative MR Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 147[A], 2013 NY Slip Op 50359[U][App Term, 1st Dept 2013]).

Contrary to defendant’s contention, the affidavits submitted in support of its defense – that plaintiff is not entitled to no-fault coverage because it breached a condition precedent under the policy by failing to appear for examinations under oath (EUOs) (see 11 NYCRR 65-1.1) – do not “‘establish conclusively that [plaintiff] has no [claim or] cause of action'” (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008], quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636 [*2][1976]), and are “not properly considered on a motion to dismiss pursuant to CPLR 3211 (a)(7)” (GEM Holdco, LLC v Changing World Tech., L.P., 127 AD3d 598, 599 [2015]; see Lee v Dow Jones & Co., Inc., 121 AD3d 548 [2014]; Sokol v Leader, 74 AD3d 1180 [2010]). Nor (as defendant effectively concedes), were the affidavits “essentially undeniable” so as to qualify as documentary evidence (see CPLR 3211[a][1]) that conclusively establishes its defense or definitively refutes any claim that plaintiff may have to recover under the policy (see Mason v First Cent. Natl. Life Ins. Co. of NY, 86 AD3d 854, 855 [2011]).

Defendant’s remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.