Renewal granted and Plaintiff loses.March 20, 2012
Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co., 2012 NY Slip Op 50491(U)(App. Term 1st Dept. 2012)
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.
Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.
Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 ; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 ). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.
This was my case.