Vincent Med. Servs., P.C. v Omni Indem. Co. (2014 NY Slip Op 50224(U))

Vincent Med. Servs., P.C. v Omni Indem. Co.

2014 NY Slip Op 50224(U) [42 Misc 3d 142(A)]

Decided on February 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Vincent Medical Services, P.C. as Assignee of ANTONINE ISMAEL, Respondent,

against

Omni Indemnity Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered June 25, 2012. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's cross motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's cross motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the accident in question and, thus, plaintiff had sued the wrong party. Defendant also sought the imposition of sanctions. In an order entered June 25, 2012, the Civil Court denied both plaintiff's motion and defendant's cross motion. Defendant appeals, as limited by its brief, from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing the complaint.

In support of the branch of its cross motion seeking summary judgment, defendant submitted affidavits by its litigation manager and the claims litigation manager of American Independent Insurance Company (AIIC) which sufficiently established defendant's lack of coverage defense (see Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Notably, the AIIC claims litigation manager attested that his company had issued the policy in question. Consequently, defendant demonstrated that plaintiff had sued the wrong insurance carrier, as defendant was not the carrier which covered the accident in question (see also Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's cross motion seeking summary judgment dismissing the complaint is granted.