Bath Med. Supply, Inc. v Auto One Ins. Co. (2011 NY Slip Op 52376(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 30, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment on the ground that defendant’s opposition papers sufficiently rebutted plaintiff’s prima face showing. Although plaintiff established that defendant did not pay its claims, plaintiff failed to show that the claims were not denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see 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, 11th & 13th Jud Dists 2011]). As a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168).

Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on a different ground. [*2]

Pesce, P.J., and Steinhardt, J., concur.

Rios, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
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PRESENT : PESCE, P.J., RIOS and STEINHARDT, JJ.
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BATH MEDICAL SUPPLY, INC.
as Assignee of IONA ASSEVERO,

Appellant,

-against-

NO. 2010-2140 K C

DECIDED
AUTO ONE INSURANCE COMPANY,

Respondent.
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Rios, J., dissents and votes to reverse the order and grant plaintiff’s motion for summary judgment in the following memorandum:

Plaintiff established its entitlement to summary judgment by proof of the timely submission of its claim to the insurer, setting forth the fact and the amount of the loss sustained, and that defendant had failed to toll their obligation to pay the claim within 30 days. Defendant’s opposition failed to establish the timely mailing of a denial. The affidavit by a “litigation examiner” who commenced employment in October 2004, in my view is insufficient to establish on personal knowledge familiarity with the practices and procedures in place at Auto One when the purported denials were issued in August 2004. Moreover, even were we to accept this claim of extra sensory perception, the affidavit is devoid of any information as to the affixation of postage on the generated denial envelopes. [*3]
Decision Date: December 23, 2011