Brinkman v. Moskowitz

CourtNew York City Municipal Court
Writing for the CourtJOHN A. MONTELEONE
Citation34 Misc.2d 141,225 N.Y.S.2d 458
Decision Date27 February 1962
PartiesJohn BRINKMAN, M.D., Plaintiff, v. Samuel J. MOSKOWITZ and Allstate Insurance Company, Defendants.

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.

Page 459

[34 Misc.2d 142] 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,

Page 460

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.'

[34 Misc.2d 143] 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...

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