March 16, 2016

Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U))

Headnote

The relevant facts considered by the court in the case of Ultimate Health Prods., Inc. v Hereford Ins. Co. were that the plaintiff was seeking to recover first-party no-fault benefits as the assignee of an individual named Paul Luckner. The main issue decided in the case was whether the defendant, Hereford Insurance Co., had issued an automobile insurance policy covering the underlying accident. The court held that the defendant had established that there was no coverage for no-fault benefits because the policy being sued upon was a workers' compensation insurance policy which did not cover the plaintiff's claim for reimbursement of assigned first-party no-fault benefits. Therefore, the order denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U))

Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U)) [*1]

Ultimate Health Prods., Inc. v Hereford Ins. Co.

2016 NY Slip Op 50367(U) [51 Misc 3d 127(A)]

Decided on March 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1470 K C

Ultimate Health Products, Inc., as Assignee of PAUL LUCKNER, Appellant,
against
Hereford Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 2013. 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 defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy covering the underlying accident.

Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its cross motion were sufficient to establish that the policy being sued upon was a workers’ compensation insurance policy which did not cover plaintiff’s claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact in opposition to defendant’s cross motion, the order is affirmed.

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

Decision Date: March 16, 2016