September 19, 2016

Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))

Headnote

The court considered the fact that the defendant's claims examiner had established that the defendant first learned of the accident on the date it had received an NF-2 form, which was submitted more than 30 days after the accident had occurred. The main issue decided was whether the defendant had established its entitlement to judgment as a matter of law in an action by a provider to recover assigned first-party no-fault benefits. The holding of the case was that the defendant did establish its entitlement to judgment as a matter of law, and as a result, the order granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed. The burden had shifted to the plaintiff, who in opposition, did not offer any proof to demonstrate the existence of a triable issue of fact.

Reported in New York Official Reports at Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))

Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U)) [*1]

TAM Med. Supply Corp. v Fiduciary Ins. Co. of Am.

2016 NY Slip Op 51352(U) [53 Misc 3d 129(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2394 Q C

TAM Medical Supply Corp., as Assignee of WILLIAM MEJIA, Appellant,
against
Fiduciary Insurance Company Of America, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 27, 2013. The order, insofar as appealed from, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims examiner established that defendant had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred. Moreover, the denial of claim form informed plaintiff that it had the opportunity to “submit[] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (11 NYCRR §§ 65-1.1, 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant’s receipt of the NF-2 form. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[A]; Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 19, 2016