March 3, 2004

Amaze Med. Supply v Colonial Penn Ins. Co. (2004 NY Slip Op 50471(U))

Headnote

The relevant facts of the case involved an action to recover first-party no-fault benefits for medical equipment provided to the plaintiff's assignors. The plaintiff filed a cross motion for summary judgment after the defendant moved for summary judgment as well. The court denied both motions, stating that the supporting affidavit submitted by the plaintiff was defective because it contained legal arguments even though the affiant was not an attorney. The main issue was whether the plaintiff's cross motion for summary judgment should have been granted, and the holding was that the plaintiff's cross motion sufficed to establish a prima facie cause of action, shifting the burden to the defendant to demonstrate the existence of a material issue of fact. As such, the court granted the plaintiff's cross motion for summary judgment and remanded the case for a calculation of statutory interest and an assessment of attorney's fees.

Reported in New York Official Reports at Amaze Med. Supply v Colonial Penn Ins. Co. (2004 NY Slip Op 50471(U))

Amaze Med. Supply v Colonial Penn Ins. Co. (2004 NY Slip Op 50471(U)) [*1]

Amaze Med. Supply v Colonial Penn Ins. Co.

2004 NY Slip Op 50471(U)

Decided on March 3, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-635 K C

AMAZE MEDICAL SUPPLY INC. a/a/o FERNANDO PEREZ and CARLOS PESANTES, Appellant,
against
COLONIAL PENN INSURANCE COMPANY, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (B. Bayne, J.), entered February 27, 2003, as denied its cross motion for summary judgment.

Order unanimously modified by providing that plaintiffs cross motion for summary judgment is granted and the matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical equipment provided to plaintiff’s assignors, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court denied both motions, holding, inter alia, that the supporting affidavit submitted in support of plaintiff’s cross motion was defective because it contained legal arguments notwithstanding that the affiant was not an attorney. This appeal by plaintiff ensued.

Although it is well settled that “[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law” (Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [1]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 75, CPLR C2214:21), the mere inclusion of two case citations within a footnote did not render the entire affidavit defective. Rather, inasmuch as the affidavit contained facts of which the affiant had personal knowledge, it was necessary to assess the merits of plaintiff’s cross motion.

Plaintiff’s cross motion sufficed to establish a prima facie cause of action (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and shifted to defendant the burden to demonstrate the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The affirmation by defendant’s counsel failed to allege that she had personal knowledge either that defendant timely mailed its requests for independent medical examinations to plaintiffs assignors or of facts sufficient to establish the [*2]presumption of mailing, i.e., an account of defendant’ s standard office procedures to ensure that requests for independent medical examinations are mailed (cf. S & M Supply, Inc. v Geico Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]). In the absence of a sufficient showing that the 30-day statutory period had been tolled, under the circumstances presented, the defendant is precluded from interposing its defenses (Insurance Law § 5106 [a]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997]; Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Thus, plaintiffs cross motion for summary judgment in the principal sum of $2,425 should have been granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Decision Date: March 03, 2004