December 21, 2011

Comfort Supply, Inc. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52358(U))

Headnote

The main issue in the case was whether Comfort Supply, Inc. had established its prima facie case to recover assigned first-party no-fault benefits in its motion for summary judgment. The court considered the affidavit annexed to the motion papers, which stated the general practice of delivery of supplies to eligible injured persons, but did not specify the method of delivery used in this case. As a result, the court denied plaintiff's motion for summary judgment, holding that the affidavit did not establish that the supplies at issue had been delivered to plaintiff's assignor. Therefore, the order denying plaintiff's motion for summary judgment was affirmed. The decision was made by the Supreme Court of the State of New York, Appellate Term, Second Department on December 21, 2011.

Reported in New York Official Reports at Comfort Supply, Inc. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52358(U))

Comfort Supply, Inc. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52358(U)) [*1]

Comfort Supply, Inc. v GEICO Gen. Ins. Co.

2011 NY Slip Op 52358(U) [34 Misc 3d 132(A)]

Decided on December 21, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-1489 K C.

Comfort Supply, Inc. As Assignee of Guaba Luciano, Appellant,
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered December 7, 2009. 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 which denied its motion for summary judgment on the ground that it had “failed to establish its prima facie case through the affidavit annexed to its motion papers.”

Plaintiff’s affiant stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery, if either, was used in this case. Accordingly, the affidavit did not establish that the supplies at issue had been delivered to plaintiff’s assignor, and plaintiff’s motion for summary judgment was properly denied (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc 3d 142[A], 2011 NY Slip Op 50315[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 21, 2011