March 22, 2016

Active Care Med. Supply Corp. v Hartford Ins. Co. (2016 NY Slip Op 50769(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-hartford-ins-co-2016-ny-slip-op50769u/

Court: Civil Court of the City of New York, Kings County
Judge: Devin P. Cohen, J.
Decided: March 22, 2016
Citation: 2016 NY Slip Op 50769(U)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Discovery and procedure

Cite as

Active Care Med. Supply Corp. v Hartford Ins. Co., 2016 NY Slip Op 50769(U) (Civ Ct, Kings County 2016)

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 failed to establish its defense that it was not the proper no-fault insurer through admissible evidence. The Civil Court, Kings County, denied the insurer's summary judgment motion. Its attorney's affidavit did not establish the defense; an employee affidavit first submitted on reply could not supply new facts. Without the policy, the employee's account of its contents was hearsay, and an uncertified police report was inadmissible. The provider's summary judgment cross motion was denied without prejudice because it asserted that necessary discovery remained incomplete, implicating CPLR 3212 (f). The provider prevailed on its request to compel discovery: absent objections, the insurer had to supply responsive nonprivileged information and documents.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Hartford Ins. Co. (2016 NY Slip Op 50769(U))

Active Care Medical Supply Corp., a/a/o Mantilla, Christian, Plaintiff,
against
Hartford Insurance Company, Defendant.

CV-027848-14/KI
Devin P. Cohen, J.

Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion: Papers Numbered

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2-3

Replying Affidavits 4-5

Exhibits

Other

Upon review of the foregoing papers, defendant’s motion for summary judgment, and plaintiff’s cross-motion for summary judgment are decided as follows:

In this action to recover assigned first-party no-fault benefits, defendant moves for summary judgment to dismiss plaintiff’s claim on the basis that defendant is not the proper insurer. Although defendant states it is the insurer for a proper workers’ compensation claim, it claims it did not insure the assignor’s employer for no-fault claims. However, in its original motion, defendant submits only the affidavit of its attorney, which is not evidence and does not serve to establish its assertions for summary judgment (Cullin v Spiess, 122 AD3d 792, 793 [2d Dept 2014]). In its reply papers, defendant submits an affidavit from an employee who claimed to have reviewed the file and determined that defendant was not the proper insurer. However, the court cannot consider new facts submitted on reply (Rengifo v City of New York, 7 AD3d 773, 773 [2d Dept 2004]). Furthermore, defendant fails to attach the insurance policy, rendering its employee’s statements as to the alleged contents of the policy hearsay (Nassau Ins. Co. v Manzione, 112 AD2d 408, 409 [2d Dept 1985] [best evidence of policy language is the policy itself]). Moreover, the police report defendant offers is uncertified, and is therefore inadmissible (Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2d Dept 2009]). Accordingly, defendant’s [*2]motion for summary judgment is denied.

Plaintiff also moves for summary judgment and to compel discovery. However, plaintiff cannot assert that it is entitled to summary judgment if it also contends that discovery is not complete and that the incomplete discovery is needed (see CPLR 3212[f]; and see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], at *3 [App Term, 2d , 11th and 13th Jud Dists 2010]; Five Boro Psychological Servs., P.C. v Autoone Ins. Co., 27 Misc 3d 89, 90-91 [App Term, 2d , 11th and 13th Jud Dists 2010]). Accordingly, plaintiff’s motion for summary judgment is denied without prejudice. As defendant does not provide this court with any objections to plaintiff’s discovery requests, defendant must serve all nonprivileged information and documents responsive to plaintiff’s discovery requests on or before May 18, 2016 (All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], at *2-3 [App Term, 2d , 11th and 13th 2013]).

For the reasons stated above, defendant’s motion for summary judgment is denied, plaintiff’s cross-motion for summary judgment is denied, and plaintiff’s motion to compel discovery is granted, to the extent described above.

This constitutes the decision and order of the court.

Date: March 22, 2016
DEVIN P. COHEN
Acting Justice, Supreme Court

Cited in this decision

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

Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(U)) FollowedThe insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims.
Five Boro Psychological Servs., P.C. v AutoOne Ins. Co. (2010 NY Slip Op 20131) FollowedThe provider's summary judgment motion was denied because unproduced discovery could support the insurer's Mallela defense.

Similar decisions

Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U))The insurer failed to establish res judicata, but its proof of bill nonreceipt defeated the provider's summary judgment cross motion.
Active Care Med. Supply Corp. v American Commerce Ins. Co. (2016 NY Slip Op 51813(U))An unvacated default declaratory judgment order can bar a provider's no-fault action under res judicata without a notice of entry.
Fair Price Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50357(U))The provider and insurer failed to establish entitlement to summary judgment because their affidavits lacked the necessary personal knowledge.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50828(U))The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted, and the provider's cross motion was denied.
Active Care Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51408(U))The provider's opposing affidavit raised a triable issue as to whether its action was premature for outstanding verification.