All Mental Care Medicine, P.C. v State Farm Mut. Ins. Co. (2009 NY Slip Op 50042(U))

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All Mental Care Medicine, P.C. v State Farm Mut. Ins. Co.

2009 NY Slip Op 50042(U) [22 Misc 3d 128(A)]

Decided on January 9, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on January 9, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., RIOS and STEINHARDT, JJ
2007-1803 Q C.

All Mental Care Medicine, P.C. a/a/o AUGUSTIN MARTES, Appellant,

against

State Farm Mutual Insurance Company, Respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), dated January 8, 2007, deemed from a judgment of the same court entered November 9, 2007 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered a notice to admit and an affirmation made by defendant's attorney in order to prove its prima facie case at trial. Plaintiff then rested without calling any witnesses. The court found that plaintiff, having failed to produce a witness, failed to make its prima facie case, and dismissed the complaint. For the reasons set forth in Bajaj v General Assur. (18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]), we affirm the judgment.

Weston Patterson, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: January 09, 2009