August 6, 2012

Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51489(U))

Headnote

The relevant facts the court considered were that Rainbow Supply of NY, Inc. was seeking to recover assigned first-party no-fault benefits from Clarendon National Ins. Co. The main issue decided was whether Clarendon had timely denied the claim at issue, and whether they were precluded from raising as a defense the failure of Rainbow Supply's assignor to appear for an independent medical examination. The court held that the affidavit submitted by Clarendon in support of its motion for summary judgment failed to establish that they had timely denied the claim, and thus the denial of Clarendon's motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51489(U))

Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51489(U)) [*1]

Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 51489(U) [36 Misc 3d 140(A)]

Decided on August 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2699 K C.

Rainbow Supply of NY, Inc. as Assignee of MANUEL SANTIAGO, Respondent, —
against
Clarendon National Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment failed to establish that defendant had timely denied the claim at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Thus, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint, as defendant failed to establish that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 06, 2012