December 18, 2017

Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U))

Headnote

The court considered the fact that the defendant-insurer failed to establish its entitlement to summary judgment dismissing the underlying first-party no-fault action based upon plaintiff's alleged failure to provide proof of claim. The defendant's claim specialist asserted that they had "no record of receiving" the claim, which was allegedly improperly mailed to a Florida post office box where the defendant "never accepted mail." However, the court found these assertions to be vague and conclusory, and that the defendant failed to make a prima facie showing that the claim was not properly and timely submitted. The main issue decided was whether the defendant had met its burden in proving that the claim was not properly submitted, and the court determined that they had not. The holding of the case was that the defendant's motion for summary judgment was denied, and the complaint was reinstated.

Reported in New York Official Reports at Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U))

Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U)) [*1]

Bright Med. Supply Co. v Nationwide Ins. Co. of Am.

2017 NY Slip Op 51700(U) [58 Misc 3d 126(A)]

Decided on December 18, 2017

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
17-358

Bright Medical Supply Co. a/a/o Raisa Shekhter, Plaintiff-Appellant,
against
Nationwide Insurance Company of America, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered July 9, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Eddie J. McShan, J.), entered July 9, 2013, reversed, with $10 costs, defendant’s motion denied and complaint reinstated.

Defendant-insurer failed to establish its entitlement to summary judgment dismissing the underlying first-party no-fault action based upon plaintiff’s alleged failure to provide defendant with proof of claim. The vague and conclusory assertions by defendant’s claim specialist that defendant had “no record of receiving” the underlying claim, which, it is alleged, was improperly mailed to a certain Florida post office box where defendant “never accepted mail,” were insufficient to make a prima facie showing that the claim was not properly and timely submitted (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; Easy Care Acupuncture PC v MVAIC, 45 Misc 3d 131[A], 2014 NY Slip Op 51645[U] [App Term, 1st Dept 2014]). Conspicuously absent from the moving affidavit was any description of defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), any indication whether the specified Florida post office box actually belonged to defendant, or even the correct address where the claim should have been sent. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2017