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

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

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