April 21, 2017

Utopia Equip. Inc. v Chubb Indem. Ins. Co. (2017 NY Slip Op 50540(U))

Headnote

The relevant facts considered by the court were that Utopia Equipment Inc. appealed a decision from the Civil Court of New York County which granted Chubb Indemnity Insurance Company's motion for summary judgment dismissing the complaint. The main issue decided by the court was whether Chubb had established its entitlement to summary judgment based on Utopia's alleged untimely submission of the no-fault claims beyond the 45-day time limit. The holding of the court was to reverse the order of the Civil Court, deny Chubb's motion for summary judgment, and reinstate the complaint. The court found that Chubb had failed to establish its entitlement to summary judgment because its claims adjuster's affidavit was inadequate to demonstrate that Utopia's bills were not timely received within the 45-day period. Therefore, denial of Chubb's motion was required regardless of the sufficiency of Utopia's opposition papers.

Reported in New York Official Reports at Utopia Equip. Inc. v Chubb Indem. Ins. Co. (2017 NY Slip Op 50540(U))

Utopia Equip. Inc. v Chubb Indem. Ins. Co. (2017 NY Slip Op 50540(U)) [*1]

Utopia Equip. Inc. v Chubb Indem. Ins. Co.

2017 NY Slip Op 50540(U) [55 Misc 3d 138(A)]

Decided on April 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
16-263

Utopia Equipment Inc., a/a/o Elizabeth Reveiz, Plaintiff-Appellant,
against
Chubb Indemnity Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated September 26, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Lynn R. Kotler, J.), dated September 26, 2014, reversed, without costs, motion denied and the complaint reinstated.

Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff’s alleged untimely submission of the no-fault claims beyond the applicable 45—day time limit (see 11 NYCRR 65—1.1[d]). The affidavit of defendant’s claims adjuster failed to describe 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]), and was inadequate to demonstrate that plaintiff’s bills were not timely received within the 45—day period (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]). 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: April 21, 2017