November 13, 2015

Compas Med., P.C. v Hereford Ins. Co. (2015 NY Slip Op 51674(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-hereford-ins-co-2015-ny-slip-op51674u/

Court: Appellate Term, Second Department
Decided: November 13, 2015
Citation: 2015 NY Slip Op 51674(U) · 49 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues

Cite as

Compas Med., P.C. v Hereford Ins. Co., 49 Misc 3d 146(A), 2015 NY Slip Op 51674(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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Summary

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

A factual dispute over which insurer covered the assignor's vehicle prevented summary judgment for either side. The provider sought assigned no-fault benefits, and the insurer claimed that the assignor had been driving a vehicle insured by another insurer. The insurer's conclusory claims-supervisor affidavit and partially illegible police report did not establish that it did not insure the vehicle occupied by the assignor. The same unresolved coverage question defeated the provider's motion. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and affirmed the denial of the provider's motion.

Reported in New York Official Reports at Compas Med., P.C. v Hereford Ins. Co. (2015 NY Slip Op 51674(U))

[*1]

Compas Med., P.C. v Hereford Ins. Co.

2015 NY Slip Op 51674(U) [49 Misc 3d 146(A)]

Decided on November 13, 2015

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 13, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-940 Q C

Compas Medical, P.C. as Assignee of IZGIYA IZGIYAEV, Appellant,
against
Hereford Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 19, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

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. The Civil Court denied plaintiff’s motion, and granted defendant’s cross motion on the ground that defendant had established that plaintiff’s assignor was not entitled to receive no-fault benefits from defendant since plaintiff’s assignor had been injured while driving a vehicle insured by a different insurer.

In support of its cross motion for summary judgment dismissing the complaint, defendant relied upon a conclusory affidavit from its no-fault claims supervisor and a partially illegible copy of a police report which, according to defendant’s counsel, purported to establish that, when the accident occurred, plaintiff’s assignor was in a car insured by another insurer and not an occupant in the vehicle insured by defendant. However, as the foregoing was insufficient to establish, as a matter of law, that defendant did not insure the vehicle in which plaintiff’s assignor was riding when the accident occurred, defendant’s cross motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. As the record reflects the existence of an issue of fact as to whether, when the accident occurred, plaintiff’s assignor was in the vehicle insured by defendant, plaintiff failed to establish as a matter of law that there was coverage by defendant of plaintiff’s assignor’s claims (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 13, 2015

Similar decisions

Compas Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51247(U))The insurer established that its policy did not cover the vehicle driven by the assignor at the time of the accident.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51147(U))The insurer established that it had not received timely notice of the accident, and the provider failed to rebut that proof.
Compas Med., P.C. v Geico Ins. Co. (2015 NY Slip Op 51590(U))The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Compas Med., P.C. v Omni Indem. Co. (2015 NY Slip Op 50414(U))The insurer established that it had not issued the policy covering the accident and that the provider had sued the wrong carrier.