December 2, 2008

Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52442(U))

Headnote

The court considered a case in which a medical provider, Vincent Medical Services, P.C., sought to recover first-party no-fault benefits from New York Central Mutual Fire Insurance Company. The main issues decided were whether the insurer's claim denials were timely and whether the insurer had coverage for the vehicle involved in the underlying motor vehicle accident. The court held that the insurer's proof failed to eliminate all triable issues of material fact, and therefore, the insurer's cross motion for summary judgment was denied. The insurer failed to establish prima facie that its claim denials were timely, and it also failed to allege, much less prove prima facie, that it did not insure the vehicle on the date of the loss. The court affirmed the order denying the insurer's cross motion for summary judgment.

Reported in New York Official Reports at Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52442(U))

Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52442(U)) [*1]

Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co.

2008 NY Slip Op 52442(U) [21 Misc 3d 142(A)]

Decided on December 2, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2007-1502 Q C. NO. 2007-1502 Q C

Vincent Medical Services, P.C., as assignee of STELLA LORVILUS, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 30, 2007. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, 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. Insofar as is relevant to this appeal by defendant, the court properly denied defendant’s cross motion for summary judgment, as defendant’s proof failed to eliminate all triable issues of material fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant failed to establish prima facie that its claim denials were timely, thereby permitting it to interpose the precludable defenses of untimely notices of claim and proofs of claim. In any event, defendant failed to demonstrate as a matter of law that such defenses have merit. With respect to defendant’s second ground for summary judgment, its defense based on lack of coverage, while defendant’s documentation established that the vehicle occupied by plaintiff’s assignor in the underlying motor vehicle accident was not insured by defendant under the policy number claimed, defendant failed even to allege, much less prove prima facie, that it did not insure that vehicle on the date of the loss.

Accordingly, defendant failed to shift the burden and, thus, the order denying its cross motion for summary judgment is affirmed.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum: [*2]

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I disagree with its finding that “[d]efendant failed to establish prima facie that its claim denials were timely . . . .”

To the contrary, I find that the affidavit by defendant’s litigation examiner was sufficient to establish timely mailing by someone with personal knowledge of the office practices as well as having personal responsibility to assure that those practices were carried out.
Decision Date: December 02, 2008