March 31, 2017

Empire State Med. Supplies, Inc. v Sentry Ins. (2017 NY Slip Op 50403(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Kings County, which denied the defendant's cross motion for summary judgment dismissing the complaint in an action by a provider to recover assigned first-party no-fault benefits. The main issue decided was whether there were triable issues of fact regarding the insured's alleged material misrepresentations in the procurement of the insurance policy. The court held that the defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint because it did not demonstrate that it was not precluded from asserting the insured's alleged misrepresentations in connection with the issuance of the policy. Therefore, the order, insofar as appealed from, was affirmed.

Reported in New York Official Reports at Empire State Med. Supplies, Inc. v Sentry Ins. (2017 NY Slip Op 50403(U))

Empire State Med. Supplies, Inc. v Sentry Ins. (2017 NY Slip Op 50403(U)) [*1]

Empire State Med. Supplies, Inc. v Sentry Ins.

2017 NY Slip Op 50403(U) [55 Misc 3d 130(A)]

Decided on March 31, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1189 K C

Empire State Medical Supplies, Inc., as Assignee of Craig Mckee, Respondent,
against
Sentry Insurance, Appellant.

Gallo Vitucci Klar, LLP, Yolanda L. Ayala, Esq., for appellant. Sierra K. Page, Esq., P.C., Zara Javakov, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 19, 2015. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint on the ground that there were triable issues of fact regarding the insured’s alleged material misrepresentations in the procurement of the insurance policy.

In support of its cross motion, defendant submitted the affidavit of its senior claims examiner which failed to establish that defendant had timely denied plaintiff’s claims (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant failed to demonstrate that it was not precluded from asserting the insured’s alleged misrepresentations in connection with the issuance of the [*2]policy. Consequently, defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk

Decision Date: March 31, 2017