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Excel Imaging, P.C. v All Car Rent A Car, Inc.
2012 NY Slip Op 50104(U) [34 Misc 3d 143(A)]
Decided on January 25, 2012
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2012
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-356.

Excel Imaging, P.C., a/a/o Jamie Messidor, Plaintiff-Respondent, - -

against

All Car Rent A Car, Inc., Defendant-Appellant.


Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered May 23, 2011, which denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Ruben Franco, J.), entered May 23, 2011, affirmed, with $10 costs.

We agree with Civil Court that this action seeking recovery of assigned first-party no-fault benefits is not ripe for summary disposition. The record raises triable issues as to whether the notices for examinations under oath were properly mailed by defendant and received by plaintiff (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; cf. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 25, 2012