January 13, 2016

Sunrise Acupuncture P.C. v Kemper Independence Ins. Co. (2016 NY Slip Op 50025(U))

Headnote

The court considered the denial of the defendant-insurer's motion for summary judgment, which sought to dismiss the complaint. The main issue decided was whether the underlying no-fault claim was precluded by a provision in the insurance policy limiting coverage upon the death of the insured to the "legal representative of the deceased." The holding of the court was to affirm the denial of the defendant's motion for summary judgment, as the defendant failed to provide evidentiary proof in admissible form that the policy contained such a provision. The court did not address whether such a policy provision would, as a matter of law, preclude the underlying no-fault claim, as this issue was not fully briefed by the parties.

Reported in New York Official Reports at Sunrise Acupuncture P.C. v Kemper Independence Ins. Co. (2016 NY Slip Op 50025(U))

Sunrise Acupuncture P.C. v Kemper Independence Ins. Co. (2016 NY Slip Op 50025(U)) [*1]

Sunrise Acupuncture P.C. v Kemper Independence Ins. Co.

2016 NY Slip Op 50025(U) [50 Misc 3d 133(A)]

Decided on January 13, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570424/15

Sunrise Acupuncture P.C. a/a/o Sharise Davis, Plaintiff-Respondent,
against
Kemper Independence Insurance Company, Defendant-Appellant.

Defendant appeals of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 5, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 5, 2013, affirmed, with $10 costs.

We sustain the denial of defendant-insurer’s motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the “legal representative of the deceased,” defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision (see Marvul v Knecht, 216 AD2d 370, 371 [1995], lv denied 86 NY2d 710 [1995]).

In view of our disposition, we have no occasion to address whether such policy provision would, as a matter of law, preclude the underlying no-fault claim (see Vehicle and Traffic Law § 388[1], [4]; Lumbermen’s Mut. Cas. Co. v Brown, 20 NY2d 542 [1967]), an issue not fully briefed by the parties.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 13, 2016