April 13, 2018

TAM Med. Supply Corp. v Country Wide Ins. Co. (2018 NY Slip Op 50578(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-country-wide-ins-co-2018-ny-slip-op50578u/

Court: Appellate Term, Second Department
Decided: April 13, 2018
Citation: 2018 NY Slip Op 50578(U) · 59 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues

Cite as

TAM Med. Supply Corp. v Country Wide Ins. Co., 59 Misc 3d 138(A), 2018 NY Slip Op 50578(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 failed to establish that the assignor was not an eligible injured person, leaving a factual issue that defeated both motions. The insurer sought dismissal of assigned no-fault claims on the ground that the assignor was not a member of the policyholder's household. Its litigation supervisor's affidavit was conclusory and unsupported by competent evidence. Although the accident occurred in Pennsylvania, the NF-2 form stated that the assignor resided in Bronx County. The insurer therefore failed to establish ineligibility under 11 NYCRR 65-1.1 (d). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the provider's motion because eligibility remained a triable issue.

Reported in New York Official Reports at TAM Med. Supply Corp. v Country Wide Ins. Co. (2018 NY Slip Op 50578(U))

[*1]

TAM Med. Supply Corp. v Country Wide Ins. Co.

2018 NY Slip Op 50578(U) [59 Misc 3d 138(A)]

Decided on April 13, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2018

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

PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2016-1087 Q C NO.

TAM Medical Supply Corp., as Assignee of Acevedo Hector, Appellant,
against
Country Wide Insurance Company, Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 29, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is 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 dismissing the complaint on the ground that plaintiff’s assignor was not a member of the policyholder’s household. By order entered March 29, 2016, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

The affidavit of defendant’s no-fault litigation supervisor was conclusory in nature and unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Although the accident occurred in Pennsylvania, the NF-2 form annexed to defendant’s cross motion states that plaintiff’s assignor resides in Bronx County. As a result, defendant’s cross motion for summary judgment should have been denied, because defendant failed to establish, as a matter of law, that plaintiff’s assignor is not an eligible injured person (see 11 NYCRR § 65-1.1 [d]). In view of the existence of a triable issue of fact as to whether the assignor was an eligible injured person who was entitled to reimbursement of first-party no-fault benefits (see id.), plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018

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TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment.
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TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51507(U))The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal.