Alford v Fiduciary Ins. Co. of Am. (2013 NY Slip Op 51074(U))

Supreme Court, New York County

150235/09

Plaintiff:

Galvano & Xanthakis, PC

150 Broadway, Ste 2100

New York, New York 10038

Defendants:

Brand Glick & Brand, PC

600 Old Country Rd, Ste 440

Garden City, New York 11530

Doris Ling-Cohan, J.

The following papers, numbered 1 – 7 were considered on this motion and cross-motion for summary judgment:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2, 3,

Answering Affidavits — Exhibits ________________________________

Replying Affidavits ____________________________________________7

Cross-Motion:[ ] Yes[ X ] No4, 5, 6

Upon the foregoing papers, it is ordered that this motion and cross-motion are decided as indicated below.

BACKGROUND

Plaintiff Calvin Alford commenced this action against defendant Fiduciary Insurance Company of America (Fiduciary Ins.) seeking no-fault benefits for injuries he sustained in an automobile accident. The facts of this action are uncontested. Plaintiff, a resident of the State of New York, did not own a car, nor did he reside with anyone who owned a car. In February 2009, plaintiff, a pedestrian, was struck, while crossing the street, by a vehicle insured by defendant Fiduciary Ins. Plaintiff was taken from the scene, to the hospital, by ambulance. Subsequently, plaintiff, and his counsel, attempted to obtain the identity of the vehicle that struck him, but was unable to ascertain such information until June 1, 2009. Nonetheless, in April 2009, plaintiff filed a timely application for benefits with the Motor Vehicle Accident Indemnification Corporation (MVAIC), and continued his efforts to discover the identity of the vehicle that struck him. On June 1, 2009, MVAIC responded to plaintiff’s application for no-fault benefits, stating that the vehicle that struck plaintiff was insured by defendant Fiduciary Ins. Through counsel, [*2]plaintiff immediately contacted defendant Fiduciary Ins., by telephone, to file a no-fault application, claim number 20082280, which was denied on June 3, 2009 pursuant to 11 NYCRR 65-1.1.

Such denial stated that plaintiff did not provide written notice of the claim, and that such claim was untimely. The denial further states that the “late notice denial will be reconsidered if the injured party submits written proof that provides clear and reasonable justification for the failure to comply with the notice requirement”. Notice of Motion, Exh. K, Denial of Claim Form, p. 1. Plaintiff unsuccessfully sought a reconsideration of the denial by telephone on several occasions. On July 17, 2009, plaintiff submitted a written request for reconsideration detailing the inability to ascertain the identity of the offending vehicle until June 1, 2009, when plaintiff received a response from MVAIC. Thereafter, plaintiff received no response to his written request for reconsideration, and commenced this action on December 10, 2009.

Plaintiff now moves for summary judgment against defendant Fiduciary Ins., declaring that defendant Fiduciary Ins. must provide no-fault benefits to plaintiff. Defendant Fiduciary Ins. cross-moves for summary judgment dismissing the summons and complaint.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Here, there is no dispute as to the facts. Plaintiff argues that after numerous attempts, made by himself and his counsel, he was unable to obtain a copy of the police report, or any other document, to ascertain the identity of the vehicle that struck him. In support, plaintiff proffers, inter alia, his affidavit detailing his attempt to obtain the police report, as well as documents requesting such police report.

Defendant Fiduciary Ins., in arguing that the summons and complaint must be dismissed, contends that timely notice of claim was not provided, that written notice was not provided until July 17, 2009, and that it is not reasonable for plaintiff to wait over two months to file an application with MVAIC merely because plaintiff was attempting to obtain a copy of the police report. Defendant Fiduciary Ins. also argues that plaintiff lacks standing to bring the instant action, as plaintiff has assigned his rights for recovery of medical expenses to his medical provider and that plaintiff has not provided proof of payment for the medical bills to the medical provider. [*3]

“It is well settled that delay on the part of an injured party to give notice may be excused, upon a showing of diligence, where he had difficulty ascertaining the identity of the insured or insurer”. Berman v County-Wide Ins. Co., 819 NYS2d 208 (Civil Ct., Queens Cty. 2006). See also Hartford Accident & Indemnity Co. v CNA Ins. Companies, 99 AD2d 310, 314 (1st Dep’t 1984). Here, plaintiff has shown entitlement to summary judgment as a matter of law. While defendant Fiduciary Ins. is correct in asserting that plaintiff’s notice of claim was technically late, 11 NYCRR 65-3.5(1) specifically states that, for the standards of review where applicants have provided late notice, “such standards shall include…appropriate consideration for pedestrians and non-related occupants of motor vehicles who may have difficulty ascertaining the identity of the insurer.” Plaintiff, a pedestrian hit by a vehicle while crossing the street, was rushed from the scene by ambulance. Plaintiff has documented his diligent attempts, and those of his counsel, in obtaining the identity of the vehicle that struck him. The Appellate Division, First Department, has held that “notice by an injured claimant is not judged by the same standard as governs notice by the insured”. Id. Thus, plaintiff has established entitlement to summary judgment.

Defendant Fiduciary Ins. argues that plaintiff failed to provide written notice. However, defendant Fiduciary Ins.’s denial of plaintiff’s oral claim specifically stated that plaintiff’s late notice would be reconsidered upon submission of a written claim. It is undisputed that plaintiff submitted such written notice. Defendant Fiduciary Ins., nevertheless, failed to reconsider plaintiff’s claim. Thus, defendant’s argument that plaintiff failed to timely provide written notice is unpersuasive. Defendant Fiduciary Ins.’s remaining argument, based on standing, is similarly inapposite. Aside from defendant Fiduciary Ins.’s conclusory allegation that plaintiff assigned his rights for recovery of medical expenses to his medical provider, defendant Fiduciary Ins. has failed to provide any evidence of such alleged assignment. The Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a motion for summary judgment. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). Thus, defendant Fiduciary Ins.’s cross-motion for summary judgment must be dismissed.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment against defendant Fiduciary Ins. is granted in its entirety, and the Clerk is directed to enter judgment accordingly in favor of plaintiff; and it is further

ORDERED, ADJUDGED and DECLARED that the defendant Fiduciary Ins. Must provide no-fault benefits, and provide coverage, to plaintiff with regards to the February 2009 automobile accident; and it is further

ORDERED that defendant Fiduciary Ins.’s cross-motion for summary judgment is denied; and it is further

ORDERED that the issue of the amount of no-fault benefits is respectfully referred to a Special Referee in accordance with CPLR §4317(b), to hear and determine; and it is further

ORDERED that within 45 days of entry of this order, plaintiff shall serve a copy of this order with notice of entry upon defendant Fiduciary Ins., as well the Clerk of the Judicial Support Office to arrange a calendar date for the reference to a Special Referee. [*4]

This is the decision and order of the court.

Dated:

DORIS LING-COHAN, J.S.C.

Check one:[ X ] FINAL DISPOSITION[ ] NON-FINAL DISPOSITION

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