MOTION TO DISMISS

MOTION TO DISMISS

High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027.

This was an action commenced for non payment of NF pip benefits.  http://www.nycourts.gov/reporter/3dseries/2016/2016_02027.htm

Defendant carrier made a motion to dismiss which the trial Court granted.  Appellate Division reversed.  Motion to Dismiss was based on the fact that the complaint failed to apprise defendant carrier of basic pertinent information in its Summons and Complaint, sufficient to put them on notice of the claims against them, such as the fact that the patients treated and the insurance policy was issued by defendant, under which plaintiff submitted claims for treatment rendered.  To correct its omission, the Plaintiff, in opposition to defendant insurance companies’ motion to dismiss, submitted an affidavit from its principal with an exhibit attached providing the information.

The Court stated that:

A complaint must “be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions” that form the basis of the complaint and “the material elements of each cause of action” (CPLR 3013). The factual allegations of the complaint are accepted as true, and afforded “every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]). “[A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (id. at 88 [internal citation and quotation marks omitted]). When such affidavits are considered, dismissal should not result unless “a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Accordingly, the Court found that , the complaint and affidavit submitted in opposition sufficiently apprise defendant insurance companies of the “transactions, occurrences, or series of transactions” that form the basis of the complaint (CPLR 3013).

The other interesting point is that the Court also held that a no show defense cannot be asserted on a motion to dismiss:

Defendant insurance companies’ further contention that plaintiff failed to appear for [*2]examinations under oath, which is a condition precedent to coverage (Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]), presents a factual issue not amenable to resolution on a motion to dismiss pursuant to CPLR 3211(a)(7).

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