| Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2014 NY Slip Op 50607(U) [43 Misc 3d 131(A)] |
| Decided on March 27, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Nassau County, First District (Fred J.
Hirsh, J.), dated August 17, 2012. The order denied defendant's motion for summary
judgment dismissing the complaint and, upon a search of the record, granted summary
judgment to plaintiff.
ORDERED that the order is modified by striking the provision which, upon a search of the record, granted summary judgment to plaintiff; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant's motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.
The court properly denied defendant's motion for summary judgment dismissing the complaint, but improperly granted summary judgment to plaintiff, as there is a triable issue of fact as to whether verification is outstanding (see Cassidy v Allstate Ins. Co., 63 AD3d 869 [2009] Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673 [2006]).
Accordingly, the order is modified by striking the provision which, upon a search of the record, granted summary judgment to plaintiff.
Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: March 27, 2014