Dayna Physical Therapy, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50322(U))

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered March 1, 2011, deemed from a judgment of the same court entered March 30, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 1, 2011 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,259.69.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 1, 2011 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims for reimbursement of assigned first-party no-fault benefits since plaintiff’s assignor had, prior to this action, elected to arbitrate claims for no-fault benefits which he had not assigned and which arose out of the same accident as was involved in the instant action. Consequently, defendant argued that arbitration was the only proper forum for plaintiff to seek recovery of its assigned no-fault claims. Plaintiff opposed defendant’s motion, contending that it was not precluded from litigating the instant action since its assignor had assigned his no-fault benefits to it prior to the commencement of the arbitration of the assignor’s claims and since the plaintiff herein was not a party to that arbitration. Plaintiff also cross-moved for summary judgment. By order entered March 1, 2011, the Civil Court denied defendant’s motion, finding that the motion papers established that the assignment of benefits predated the assignor’s election to arbitrate and that, therefore, the Roggio case was not applicable, and granted plaintiff’s cross motion. Defendant appeals from the March 1, 2011 order. A judgment was subsequently entered awarding plaintiff the principal sum of $2,259.69, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The Civil Court properly denied defendant’s motion. As the Civil Court correctly noted, [*2]since plaintiff’s assignor had executed the assignment of benefits to plaintiff prior to his commencement of his own arbitration, the holding in Roggio (66 NY2d 260) does not apply here and, thus, plaintiff was not precluded from litigating the claims at issue in this action (see Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

However, the Civil Court should have denied plaintiff’s cross motion for summary judgment. Plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of plaintiff’s billing supervisor, which was missing several paragraphs, was insufficient to establish that the documents annexed to plaintiff’s motion papers constituted proof of the fact and the amount of loss sustained (see CPLR 4518 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order entered March 1, 2011 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: March 05, 2013