December 10, 2021

SK Prime Med. Supply v Country Wide Ins. Co. (2021 NY Slip Op 51204(U))

https://www.beynensonlaw.com/case-law/sk-prime-med-supply-v-country-wide-ins-co-2021-ny-slip-op51204u/

Court: Appellate Term, Second Department
Decided: December 10, 2021
Citation: 2021 NY Slip Op 51204(U) · 73 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Policy issues

Cite as

SK Prime Med. Supply v Country Wide Ins. Co., 73 Misc 3d 142(A), 2021 NY Slip Op 51204(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's underwriting affidavit established that it had issued no policy covering the accident, and the provider raised no triable issue. The Appellate Term, Second Department, reversed denial of the insurer's cross motion and granted summary judgment dismissing the assigned-benefits complaint. The affidavit from the underwriting department's new business supervisor was sufficient to establish the absence of coverage for the loss. Although the Civil Court had not addressed the provider's own summary judgment motion, dismissal made remittal for a ruling on that motion unnecessary.

Reported in New York Official Reports at SK Prime Med. Supply v Country Wide Ins. Co. (2021 NY Slip Op 51204(U))

[*1]

SK Prime Med. Supply v Country Wide Ins. Co.

2021 NY Slip Op 51204(U) [73 Misc 3d 142(A)]

Decided on December 10, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-456 K C

SK Prime Medical Supply, as Assignee of Evans, Eddie, Respondent,
against
Country Wide Insurance Company, Appellant.

Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 28, 2019. The order denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 dismissing the complaint on the ground that defendant had not issued an insurance policy covering the accident in question. The Civil Court denied defendant’s cross motion without addressing plaintiff’s motion for summary judgment.

In support of its cross motion, defendant submitted an affidavit from its underwriting department’s New Business Supervisor which was sufficient to demonstrate that defendant had not issued a policy covering the subject loss (see Pavlova v Country Wide Ins. Co., 59 Misc 3d 151[A], 2018 NY Slip Op 50843[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In opposition to defendant’s prima facie showing that there was no coverage in effect at the time of the accident, plaintiff failed to demonstrate the existence of a triable issue of fact. As a result, defendant’s cross motion for summary judgment should have been granted and, consequently, there is no need to remit the matter to the Civil Court for further proceedings upon plaintiff’s motion for summary judgment (see New Millennium Med. Imaging, P.C. v Charter Oak Fire Ins. Co., 64 Misc 3d 137[A], 2019 NY Slip Op 51163[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova, 2018 NY Slip Op 50843[U]; New Way Med. Supply Corp. v Dollar Rent A [*2]Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 10, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U)) FollowedThe insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss.
New Millennium Med. Imaging, P.C. v Charter Oak Fire Ins. Co. (2019 NY Slip Op 51163(U)) FollowedThe insurer obtained summary judgment because its proof showed that it had issued no policy covering the loss.
New Way Med. Supply Corp. v Dollar Rent A Car (2015 NY Slip Op 51794(U)) FollowedThe self-insurer's claims examiner affidavit established its lack-of-coverage defense without detailing each records-search step.

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SK Prime Med. Supply v Permanent Gen. Assur. Corp. (2019 NY Slip Op 52052(U))The insurer established effective policy cancellation before the accident by proving proper mailing and timely filing with the DMV. The insurer sought summary judgment dismissing the provider's assigned no-fault claim for lack of coverage after cancellation for nonpayment of the premium.
SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
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Longevity Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51235(U))The insurer established that it had already paid another provider for the same medical equipment underlying the disputed claim.
Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.