December 12, 2013

Westchester Med. Ctr. v New S. Ins. Co. (2013 NY Slip Op 52085(U))

Headnote

The relevant facts considered by the court were that Westchester Medical Center, as the assignee of Gerard R. Brown, was seeking to recover first-party no-fault insurance benefits from New South Insurance Company. The main issue decided was that the District Court denied Westchester Medical Center's motion for summary judgment. The holding of the case was that the District Court properly determined that Westchester Medical Center was not entitled to summary judgment, as it had failed to establish the absence of a material issue of fact. The appellate court affirmed the order, without costs, and declined New South Insurance Company's request to award it summary judgment dismissing the complaint.

Reported in New York Official Reports at Westchester Med. Ctr. v New S. Ins. Co. (2013 NY Slip Op 52085(U))

Westchester Med. Ctr. v New S. Ins. Co. (2013 NY Slip Op 52085(U)) [*1]

Westchester Med. Ctr. v New S. Ins. Co.

2013 NY Slip Op 52085(U) [41 Misc 3d 145(A)]

Decided on December 12, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., LaSALLE and MARANO, JJ
.

Westchester Medical Center as Assignee of GERARD R. BROWN, Appellant, —
against
New South Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated September 26, 2011. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the District Court as denied its motion for summary judgment.

The record shows that the District Court considered both defendant’s proof that defendant had not received requested verification from plaintiff and an affidavit from plaintiff which asserts that material responsive to the verification request had been sent to defendant. Thus, plaintiff failed to establish the absence of a material issue of fact. As a result, the District Court properly determined that plaintiff was not entitled to summary judgment. We decline defendant’s request to search the record and award it summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: December 12, 2013