March 11, 2016

EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50314(U))

Headnote

The court considered that the plaintiff, EMC Health Products, Inc., was seeking to recover no-fault benefits from Allstate Insurance Company, as the assignee of Peter Esquilin. The main issue decided was whether Allstate Insurance Company provided insurance coverage for the vehicle on the date of the accident. The holding of the case was that the court affirmed the order denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint. The court found that the defendant's affidavit was sufficient to demonstrate that the plaintiff's claim did not arise out of a covered incident, and as the plaintiff failed to raise a triable issue of fact, the civil court properly granted the defendant's cross motion for summary judgment.

Reported in New York Official Reports at EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50314(U))

EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50314(U)) [*1]

EMC Health Prods., Inc. v Allstate Ins. Co.

2016 NY Slip Op 50314(U) [50 Misc 3d 147(A)]

Decided on March 11, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1458 K C

EMC Health Products, Inc. as Assignee of Peter Esquilin, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 10, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered May 10, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee, who described the details of a record search which she had performed and stated that her search had revealed that there was no Allstate Insurance Company policy covering the vehicle in question on the date of the accident. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

Decision Date: March 11, 2016