October 25, 2011

Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co. (2011 NY Slip Op 51990(U))

Headnote

The relevant facts in this case were that Superior Medical Equipment & Supply, as the assignee of Ravin Smith, was seeking to recover first-party no-fault benefits from Merchants & Businessmens Mutual Ins. Co. The main issue decided by the court was whether the defendant was entitled to summary judgment dismissing the complaint. The court held that the defendant had established its prima facie entitlement to summary judgment by providing an affidavit stating that the involved vehicle was not insured by the defendant until three weeks after the accident. However, the burden shifted to the plaintiff to raise a triable issue of fact, which they did by arguing that the owner of the vehicle directed his insurance broker to have the vehicle added to the existing insurance policy with the defendant. This created an issue of fact as to whether the broker had the authority to represent the defendant, and as a result, the defendant's motion for summary judgment was properly denied. Therefore, the order denying the motion for summary judgment was affirmed.

Reported in New York Official Reports at Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co. (2011 NY Slip Op 51990(U))

Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co. (2011 NY Slip Op 51990(U)) [*1]

Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co.

2011 NY Slip Op 51990(U) [33 Misc 3d 133(A)]

Decided on October 25, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2010-350 K C.

Superior Medical Equipment & Supply as Assignee of RAVIN SMITH, Respondent,
against
Merchants & Businessmens Mutual Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered February 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 denying its motion for summary judgment dismissing the complaint.

A review of the record indicates that defendant established its prima facie entitlement to summary judgment by the affidavit of the claims representative of its third-party administrator in which she stated that the subject vehicle was not insured by defendant until three weeks after the July 15, 2002 accident. The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, plaintiff argued that, within 14 days of the July 11, 2002 purchase of the subject vehicle, the owner directed his insurance broker, allegedly defendant’s agent, to have the vehicle added to the owner’s existing insurance policy that he had with defendant, which notification was a condition precedent to defendant insuring the vehicle, retroactive to the date of purchase, as a newly acquired automobile under the existing policy. In addition, plaintiff’s opposition papers included defendant’s own “Auto Policy Declaration” for the vehicle’s owner, which lists the insurance broker as “Agency 11868.” The foregoing creates an issue of fact as to whether the broker had “a general authority” (Indian Country v Pennsylvania Lumbermens Mut. Ins. Co., 284 AD2d 712, 714-715 [2001]) to represent defendant (see Rendeiro v State-Wide Ins. Co., 8 AD3d 253 [2004]). Consequently, defendant’s motion for summary judgment was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: October 25, 2011