Gentle Care Med. Servs., P.C. v Country Wide Ins. Co. (2017 NY Slip Op 50487(U))

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Florence D. Zabokritsky, P.L.L.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 14, 2015. The order denied defendant’s motion to vacate an order of the same court (Robin Kelly Sheares, J.) dated May 20, 2014, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, or, in the alternative, for leave to renew defendant’s cross motion and its opposition to plaintiff’s motion.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking leave to renew its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment is granted, and, upon renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order dated May 20, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Subsequently, defendant moved to vacate the May 20, 2014 order or, in the alternative, for leave to renew its prior cross motion and its opposition to plaintiff’s prior motion. In support of its motion, defendant submitted a general release, executed by plaintiff’s sole officer and shareholder. Defendant’s counsel stated that he had been unaware of the release at the time the prior motions had been decided. The release, dated before plaintiff had made its motion for summary judgment, essentially releases all pending no-fault claims against any insurance provider. It further states: “Presentment of a copy of this Release shall serve to advise any forum in which a claim for benefits is pending or subsequently filed on behalf of any of the Entities that such claim(s) has been withdrawn with prejudice.” In opposition, plaintiff’s counsel did not challenge the validity, authenticity or applicability of the release. In fact, plaintiff’s counsel did not discuss the release. The Civil Court denied defendant’s motion on the ground that the May 20, 2014 order had been granted on default.

At the outset, we note that there is no indication in the record that plaintiff’s prior motion for summary judgment was granted on default; indeed, the recitation of papers considered includes both opposition and reply papers. Thus, the stated ground for the Civil Court’s denial of defendant’s cross motion lacks a basis in fact.

A motion to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [2], [3]). Here, defendant proffered a release, the authenticity of which plaintiff has not challenged, which released the no-fault claims underlying this action. The release constitutes a complete bar to the instant action (see Warmhold v Zagarino, 144 AD3d 672 [2016]; Powell v Adler, 128 AD3d 1039 [2015]). Moreover, defendant’s counsel alleged that he had been unaware of the release when the prior motions had been decided (cf. Huma v Patel, 68 AD3d 821 [2009]).

Accordingly, the branch of defendant’s motion seeking leave to renew its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment is granted, and, upon renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Solomon, J.P., Pesce and Elliot, JJ., concur.