
    John Brinkman, Appellant, v. Samuel J. Moskowitz et al., Respondents.
    Supreme Court, Appellate Term, Second Department,
    December 24, 1962.
    
      Eayt é Eayt (Jerome Z. Ginsburg of counsel), for appellant. Thomas J. Flood and Asher Marcus for Allstate Insurance Company, respondent. Milton Jacobs and Abraham Umanov for Samuel J. Moskowitz, respondent.
   Per Curiam.

It is undisputed that defendant Moskowitz had notice of the assignment to plaintiff, for medical services rendered, of a portion of the proceeds of his client’s claim for personal injuries. Consequently, in paying out moneys in disregard of such assignment, he is liable to plaintiff for the resulting damage. (Continental Purchasing Co. v. Van Raalte Co., 251 App. Div. 151.)

The affidavit submitted in support of the defendant Allstate’s motion for summary judgment fails to establish that the cause of action asserted against it has no merit.

The order denying plaintiff’s motion for summary judgment against defendant Moskowitz should be unanimously reversed, without costs, motion granted and the matter directed to be set down for an assessment of damages.

The order, insofar as it grants summary judgment to both defendants and judgment entered thereon, should be unanimously reversed, with $5 costs to plaintiff against each defendant, and motion for summary judgment by defendant Allstate Insurance Company denied.

Concur — Hart, Di Gtovanna and Brown, JJ.

Order reversed, etc.  