November 20, 2015

Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U))

Headnote

The court considered the motion for summary judgment by the plaintiff and the cross motion for summary judgment by the defendant in a case involving a provider seeking to recover assigned first-party no-fault benefits. The main issue decided was whether there was coverage for the no-fault benefits as the defendant had not issued an automobile insurance policy which would cover the underlying accident. The court held that the lack of coverage defense could be raised without regard to the timeliness of an insurer's denial of claim form, and that the defendant had established that the policy being sued upon was a workers' compensation insurance policy which did not cover the plaintiff's claim. As the plaintiff failed to demonstrate the existence of an applicable automobile insurance policy or raise a triable issue of fact, the court affirmed the denial of the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U))

Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U)) [*1]

Flatbush Chiropractic, P.C. v Hereford Ins. Co.

2015 NY Slip Op 51712(U) [49 Misc 3d 149(A)]

Decided on November 20, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-829 Q C

Flatbush Chiropractic, P.C. as Assignee of ANDRE PHANOR, Appellant,
against
Hereford Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 12, 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion, and granted defendant’s cross motion 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 which would cover 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, the order is affirmed.

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

Decision Date: November 20, 2015