June 15, 2018

Maxford, Inc. v Country Wide Ins. Co. (2018 NY Slip Op 50941(U))

https://www.beynensonlaw.com/case-law/maxford-inc-v-country-wide-ins-co-2018-ny-slip-op-50941u/

Court: Appellate Term, Second Department
Decided: June 15, 2018
Citation: 2018 NY Slip Op 50941(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Timeliness and preclusion Policy issues

Cite as

Maxford, Inc. v Country Wide Ins. Co., 2018 NY Slip Op 50941(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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Summary

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

The insurer raised a factual issue whether it timely and properly denied the claim based on the assignor's alleged intoxication. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of summary judgment to the provider, and denied that motion. The insurer alleged that the assignor's intoxication while operating the vehicle proximately caused the accident. Under CPLR 5501 (c), the appeal from the summary judgment order was deemed taken from the ensuing judgment. The insurer's cross motion for summary judgment dismissing the complaint remained denied.

Reported in New York Official Reports at Maxford, Inc. v Country Wide Ins. Co. (2018 NY Slip Op 50941(U))

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

Maxford, Inc., as Assignee of Hardy, Tiffany, Respondent,
against
Country Wide Insurance Company, Appellant.

Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Jessica Voto of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 3, 2015, deemed from a judgment of that court entered May 6, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 3, 2015 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $934.15.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing, among other things, that defendant had timely denied the claim on the ground that plaintiff’s assignor’s intoxication at the time of the accident at issue was the proximate cause of the accident. By order entered June 3, 2015, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Defendant’s appeal from the June 3, 2015 order is deemed from a judgment that was entered on May 6, 2016 pursuant to the order (see CPLR 5501 [c]).

In opposition to plaintiff’s motion, defendant raised a triable issue of fact as to whether it had timely and properly denied the claim based on the alleged intoxication of plaintiff’s assignor, who was operating the vehicle at the time of the accident at issue (see Westchester Med. Ctr. v Mapfre Ins. Co. of NY, 119 AD3d 777 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 15, 2018

Cited in this decision

A label shows how this decision treated the case it cites.

Westchester Med. Ctr. v Mapfre Ins. Co. of N.Y. (2014 NY Slip Op 05325) FollowedThe insurer raised a triable issue whether its intoxication-based denial was timely and proper after receipt of additional verification.
NYU-Hospital for Joint Diseases v Esurance Ins. Co. (2011 NY Slip Op 04436) FollowedThe insurer raised factual issues about timely denial and whether the assignor's injury resulted from driving while intoxicated.

Similar decisions

Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U))The insurer failed to establish that it would not have issued the same policy had accurate residence and garaging information been disclosed.
Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50685(U))The insurer failed to establish that the assignor's alleged intoxication proximately caused the accident.
Woo Yup Kang v Mercury Cas. Co. (2012 NY Slip Op 51821(U))The insurer failed to establish the assignor's intoxication at the time of the accident with sufficient admissible proof.
Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))The insurer's evidence raised a factual issue about whether the assignor's injuries arose from an insured incident but did not warrant dismissal.
TAM Med. Supply Corp. v Country Wide Ins. Co. (2018 NY Slip Op 50578(U))The insurer failed to establish that the assignor was not an eligible injured person, leaving a factual issue that defeated both motions.