November 9, 2018

Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U))

Headnote

The main issue decided in this case was whether the defendant was entitled to summary judgment dismissing the complaint and if the plaintiff was entitled to summary judgment in an action to recover assigned first-party no-fault benefits. The court held that the defendant's motion for summary judgment was denied and the plaintiff's cross motion for summary judgment was granted. The defendant's motion for summary judgment was based on an "affidavit" from the claim representative that was not properly sworn to before a notary public, and therefore could not be relied upon to raise an issue of fact as to the timeliness of the defendant's denial of claim forms. The court affirmed the order and concluded that the plaintiff was entitled to summary judgment based on the facts and evidence presented.

Reported in New York Official Reports at Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U))

Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U)) [*1]

Barshay v 21st Century Centennial Ins. Co.

2018 NY Slip Op 51605(U) [61 Misc 3d 140(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1563 K C

Oleg Barshay, D.C., as Assignee of Maxim Savelyev, Respondent,
against
21st Century Centennial Insurance Company, Appellant.

Law Offices of Bryan Rothenberg (Konstantinos Tsirkas of counsel), for appellant. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered May 2, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant’s motion for summary judgment was based upon, among other things, what purported to be an “affidavit” from defendant’s claim representative, which “affidavit” was not sworn to before a notary public (see e.g. Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and therefore cannot be relied upon to raise an issue of fact as to the timeliness of defendant’s denial of claim forms, let alone demonstrate, as a matter of law, that defendant had timely denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018