|Utopia Equip. Inc. v Chubb Indem. Ins. Co.|
|2017 NY Slip Op 50540(U) [55 Misc 3d 138(A)]|
|Decided on April 21, 2017|
|Appellate Term, First 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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated September 26, 2014, which granted defendant's motion for summary judgment dismissing the complaint.
Order (Lynn R. Kotler, J.), dated September 26, 2014, reversed, without costs, motion denied and the complaint reinstated.
Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff's alleged untimely submission of the no-fault claims beyond the applicable 45—day time limit (see 11 NYCRR 65—1.1[d]). The affidavit of defendant's claims adjuster failed to describe defendant's "regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims" (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 ), and was inadequate to demonstrate that plaintiff's bills were not timely received within the 45—day period (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]). Given defendant's failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.