Forest Park Acupuncture, P.C. v. NYCT MaBSTOA

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 20, 2017
• Docket: 2017 NYSlipOp 50102(U)
• Status: Published

Opinion

Forest Park Acupuncture, P.C., as Assignee of SHERRIAN ROGERS, Respondent,

against

NYCT MaBSTOA, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 20, 2015. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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. Defendant appeals from so much of an order of the Civil Court as denied its cross motion for summary judgment.

Summary judgment is a drastic remedy which should be employed only where there is no doubt as to the absence of triable issues (see Kolivas v Kirchoff, 14 AD3d 493 [2005]). Here, defendant's cross motion is based upon the proposition that plaintiff did not submit the claim forms in question to defendant. That proposition is not established, as a matter of law, by the record before us (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 230 [2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: January 20, 2017