November 30, 2018

TAM Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51775(U))

Headnote

The court considered the denial of plaintiff's motion for summary judgment and the granting of defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the action was premature because the plaintiff had failed to provide requested verification. The court held that plaintiff's opposition to defendant's cross motion failed to raise a triable issue of fact, as the "affidavit" from plaintiff's owner was neither signed nor sworn to before a notary public. Consequently, the court affirmed the order, denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at TAM Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51775(U))

TAM Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51775(U)) [*1]

TAM Med. Supply Corp. v Hereford Ins. Co.

2018 NY Slip Op 51775(U)

Decided on November 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1224 K C

TAM Medical Supply Corp., as Assignee of Davis, Norma, Appellant,
against
Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Thaomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered April 1, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action is premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, its opposition to defendant’s cross motion failed to raise a triable issue of fact, as plaintiff’s opposition was based upon what purported to be an “affidavit” from plaintiff’s owner which was neither signed nor sworn to before a notary public (see e.g. Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we do not pass upon whether that “affidavit” would have been sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018