December 13, 2019

Longevity Med. Supply, Inc. v 21st Century Ins. Co. (2019 NY Slip Op 52041(U))

https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-21st-century-ins-co-2019-ny-slip-op52041u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52041(U)
Posture: Summary judgment
Outcome: Split result
Issues: Other Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Longevity Med. Supply, Inc. v 21st Century Ins. Co., 2019 NY Slip Op 52041(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's uncertified police report failed to establish the out-of-state contacts asserted for forum non conveniens dismissal. The report was inadmissible hearsay under CPLR 4518 (a) and proved neither a New Jersey accident nor the assignor's Texas residence; the insurer's other exhibits listed a Staten Island residence. Dismissal under CPLR 327 (a) was therefore unwarranted. The provider likewise failed to establish summary judgment entitlement under Insurance Law § 5106 (a), showing neither an untimely denial nor a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny forum non conveniens dismissal, affirmed denial of the provider's cross motion, and remitted for determination of the insurer's remaining motion branches.

Reported in New York Official Reports at Longevity Med. Supply, Inc. v 21st Century Ins. Co. (2019 NY Slip Op 52041(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Longevity Medical Supply, Inc., as Assignee of Stevens, Quillens, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Jennifer A. Joseph of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 18, 2017. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Defendant asserted that, while the applicable insurance policy had been issued in Texas, the New Jersey courts were the proper forum for plaintiff’s action, as Texas does not offer no-fault benefits. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennet, 78 AD3d 936 [2010]).

In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff’s assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor’s residence. In any event, we note that defendant’s own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant’s motion seeking dismissal based on forum non conveniens, that defendant’s evidence had sufficiently demonstrated a lack of significant contacts to New York.

With respect to plaintiff’s cross motion for summary judgment, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the claimant failed to show prima facie entitlement because its proof did not establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

RX Warehouse Pharm., Inc. v 21st Century Ins. Co. (2022 NY Slip Op 50375(U))The insurer failed to support forum non conveniens dismissal with admissible accident-location evidence or proof of hardship.

Similar decisions

Monroe v Foremost Signature Ins. Co. (2019 NY Slip Op 52042(U))The insurer failed to support forum non conveniens dismissal with admissible evidence of witness hardship or grounds for another forum.
Longevity Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2019 NY Slip Op 51956(U))A Civil Court summary judgment motion is timely when mailed to opposing counsel within 120 days after the notice of trial is filed.
Longevity Med. Supply, Inc. v Global Liberty Ins. Co. (2020 NY Slip Op 50527(U))The insurer was awarded summary judgment based on a declaratory judgment barring no-fault benefits for the accident.
Longevity Med. Supply, Inc. v Farmington Cas. Co. (2019 NY Slip Op 51626(U))The provider's sole challenge to the insurer's summary judgment motion was unpreserved because it was raised for the first time on appeal.
Longevity Med. Supply, Inc. v American Ind. Ins. Co. (2020 NY Slip Op 51118(U))The provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service.