Flatbush Chiropractic, P.C. v GEICO Ins. Co. (2013 NY Slip Op 51104(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered April 18, 2011. 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The court found that defendant had demonstrated that there was a lack of coverage due to the exhaustion of the limits of the applicable insurance policy.

Defendant sufficiently established that the relevant policy is a Delaware insurance policy, which was issued to a Delaware resident for an automobile registered in Delaware. Furthermore, the NF-2 form, which was signed by plaintiff’s assignor and proffered by defendant as an exhibit, revealed that the accident had occurred in Delaware. In view of Delaware’s significant contacts with the contract (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]), the application of Delaware law to the substantive issues is proper (see Matter of Allstate Ins. Co. [*2][Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]). Delaware law requires minimum compensation for, among other things, medical expenses in the amount of $15,000 for one person in any one accident (see 21 Del. C. § 2118 [a] [2] [b]; 21 Del. C. § 2902 [b] [2]; Wygant v Geico Gen., 27 A3d 553 [2011] [table; text at 2011 WL 3586488 Del Sup Ct 2011]). While a Delaware policy may provide for higher limits of compensation (see 18 Del. Admin. Code 603-6.2), the policy in question provided for a $15,000 coverage limit for each person for bodily injury. “We bind parties to the plain meaning of clear and unequivocal language in insurance contracts lest we create a new contract with rights, liabilities, and duties to which the parties did not assent” (Wygant v Geico Gen., 27 A3d 553 [table; text at 2011 WL 3586488, at *1).

As defendant has made a prima facie showing, through the affidavits of its claims and underwriting employees, and through the submission of documentary evidence, that the policy had a $15,000 medical expenses coverage limit and that it had been exhausted (see New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]), defendant established its prima facie entitlement to judgment as a matter of law. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion. The parties’ remaining contentions either lack merit or are not properly before this court because they are raised for the first time on appeal.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013