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Astoria Quality Med. Supply v MVAIC (2007 NY Slip Op 52275(U))
[*1]


Decided on November 20, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ 2006-789 K C.
Astoria Quality Medical Supply a/a/o Collado Eladio, Munoz Carmen, Jimenez Sacheverell, Rivera Martha, Pagoada Carlos and Drozdova Yulia, Appellant,
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered March 2, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment upon its claim pertaining to assignor Pagoada Carlos and granted defendant's cross motion to the extent of severing the actions and awarding defendant partial summary judgment dismissing plaintiff's claim pertaining to assignor Collado Eladio.
Appeal from so much of the order as granted defendant's cross motion for severance dismissed.
Order, insofar as reviewed, modified by providing that defendant's cross motion for summary

file:///C|/Users/Peter/Desktop/NY/2/2007_52275.htm[4/21/2013 10:57:57 PM] Astoria Quality Med. Supply v MVAIC (2007 NY Slip Op 52275(U))
judgment upon the claim pertaining to assignor Collado Eladio is denied; as so modified, affirmed without costs.
Plaintiff commenced this action to recover first-party no-fault benefits as assignee of six individuals each of whom were injured in separate automobile accidents. After plaintiff moved for summary judgment, defendant cross-moved for summary judgment or, in the alternative, for severance. The court denied plaintiff's motion, granted defendant's cross motion to the extent of severing the actions and awarding defendant summary judgment upon the claim pertaining to assignor Collado Eladio.
Plaintiff concedes that its moving papers were insufficient to establish a prima facie case, but asserts that, upon a search of the record, it was nevertheless entitled to summary judgment on the claim pertaining to assignor Pagoada Carlos. Contrary to plaintiff's contention, the fact that the motion court did not search the record was not an improvident exercise of its discretion. On [*2]appeal, we decline plaintiff's request to search the record and award it summary judgment upon said claim (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).
Although the court dismissed the cause of action pertaining to Collado Eladio due to a failure to comply with Insurance Law

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