Brinkman v. Moskowitz

• Decision Date: 27 February 1962
• Citation: 34 Misc.2d 141,225 N.Y.S.2d 458
• Parties: John BRINKMAN, M.D., Plaintiff, v. Samuel J. MOSKOWITZ and Allstate Insurance Company, Defendants.
• Court: New York City Municipal Court

Page 458

225 N.Y.S.2d 458

34 Misc.2d 141

John BRINKMAN, M.D., Plaintiff, v. Samuel J. MOSKOWITZ and Allstate Insurance Company, Defendants.

Municipal Court of City of New York, Borough of Brooklyn,

First District.

Feb. 27, 1962.

Hayt & Hayt, New York City, for plaintiff.

Milton Jacobs, New York City, for defendant Samuel J. Moskowitz.

Thomas J. Flood, New York City, for Allstate Insurance Co.

JOHN A. MONTELEONE, Justice.

Plaintiff moves for summary judgment pursuant to Rule 113 of the Rules of Civil Practice against the defendant Samuel J. Moskowitz. Defendant Allstate Insurance Company also seeks summary judgment dismissing the complaint.

The complaint alleges two causes of action. Both causes of action are for money had and received by each of the defendants in the respective sum of $500.00. Plaintiff alleges that this sum had been assigned to him by one John Lynch out of the proceeds of a tort claim or action.

The moving papers disclose that said John Lynch was injured in an automobile accident on October 1, 1955 and as a result was taken to Kings County Hospital where he remained until December 27 1955. While in said hospital, it is alleged that he was treated by the plaintiff doctor and by doctors under his supervision. Mr. Lynch retained the defendant, Samuel J. Moskowitz, Esq., as attorney to prosecute his claim for personal injuries against one Sergie Pisarile, insured by the defendant, Allstate Insurance Company.

On October 14, 1955, said John Lynch executed an assignment, which was witnessed by his attorney, the defendant, Samuel J. Moskowitz. By this assignment, Lynch assigned to Kings County Hospital monies, at the rate of $21.00 per day, which may hereafter become payable to him as the result of any settlement, claim or judgment. Included in this assignment is the following paragraph:

'To such physician or physicians on the medical visiting staff, as their names may appear on my hospital record at said hospital, I hereby make an additional assignment with the same force and effect as the one to the City of New York, for the value of the professional services rendered, provided that the charges do not exceed twice the rates set forth in the medical fee schedule established by the Workmen's Compensation Board and that such medical and surgical services were rendered by such physician or under his personal supervision or direction.'

Plaintiff alleges that on February 21, 1956 written notice of this assignment was sent to the defendant, Moskowitz, by certified mail and annexes a signed receipt. Plaintiff, pursuant to Section 585, subd. c of the New York City Charter, submitted a bill for $500 .00 for professional services rendered to John Lynch. The papers disclose that the bill for $500.00 was submitted to the patient, Lynch, without indicating the date of submission. It is alleged without denial that Lynch's claim or action was settled in June of 1956 for $8,500.00 and the money was disbursed as follows: $1,827.00 to the Department of Hospitals and $6,673.00 to Samuel J. Moskowitz.

Defendant, Moskowitz, interposed an answer consisting of a general denial. In his opposing affidavit he raises two questions: 1. That this Court does not have jurisdiction of this action since it is equitable in nature and 2. That plaintiff had previously moved to discontinue this action and that an order was made granting said motion on December 20, 1961 on condition that plaintiff pay $25 .00 to defendants on or before January 15, 1962, otherwise denied. Plaintiff failed to comply with the order of December 20, 1961 and it follows that the action was not discontinued and is still pending in this Court.

Accordingly, the Court will now consider the jurisdictional question as to whether or not this action is equitable in nature. There is no question that when the assignment was executed the subject of the assignment was not in existence. Lynch agreed to turn over monies only if he recovered same. Therefore, until the claim or action resulted in an actual monetary recovery, plaintiff had an equitable assignment. However, when the settlement of $8,500.00 was actually paid over to the defendant, Moskowitz, as attorney for Lynch, the equitable title ripened into a legal title sufficient to sustain this action. Goldwater v. Nitzberg, 161 Misc. 847, 292 N.Y.S. 119.

We now come to the fundamental question involved herein. Is an...