July 12, 2007

JSI Expert Serv. v Allstate Ins. Co. (2007 NY Slip Op 51484(U))

Headnote

The court considered the timely denial of the claim form issued by the defendant and whether the insurance policy covered bodily injury or property damage only. The main issue decided was whether the insurance policy issued by the defendant obligated it to pay claims for no-fault benefits. The court held that the timeliness of the denial of claim form was irrelevant to the defense, as the insurance policy did not provide coverage for no-fault benefits. Additionally, the court found that the defendant's opposing papers were sufficient to demonstrate the existence of an issue of fact as to whether the insurance policy obligated the defendant to pay claims for no-fault benefits. Therefore, the order denying the plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at JSI Expert Serv. v Allstate Ins. Co. (2007 NY Slip Op 51484(U))

JSI Expert Serv. v Allstate Ins. Co. (2007 NY Slip Op 51484(U)) [*1]

JSI Expert Serv. v Allstate Ins. Co.

2007 NY Slip Op 51484(U) [16 Misc 3d 132(A)]

Decided on July 12, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS AND BELEN, JJ
2006-537 K C.

JSI Expert Service a/a/o Taylor Garfield, Appellant,
against
Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 18, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court below denied both motions on the ground that an issue of fact existed as to whether the insurance policy issued by defendant contained coverage for bodily injury. Plaintiff appeals from so much of the order as denied its motion for summary judgment.

In Zappone v Home Ins. Co. (55 NY2d 131, 135-136 [1982]), the Court of Appeals noted that an untimely denial of coverage does not “bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle.” Thus, the timeliness of the denial of claim form issued by the instant defendant is irrelevant to the extent defendant’s defense is predicated upon the fact that the insurance policy issued by defendant covered property damage only and it did not provide coverage for no-fault benefits (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Moreover, contrary to plaintiff’s contention, under the circumstances, defendant’s opposing papers were sufficient to demonstrate the existence of an issue of fact as to whether the [*2]insurance policy issued by defendant obligated defendant to pay claims for no-fault benefits (see Zappone v Home Ins. Co., 55 NY2d 131, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the order is affirmed.

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: July 12, 2007