SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
April 22, 2011
ASTORIA QUALITY MEDICAL SUPPLY AS ASSIGNEE OF REUVEN HAFIZOV, PEREZ ZUHILA CARMEN AND JUAN ALVAREZ,
STATE FARM MUTUAL AUTOMOBILE INS. CO.,
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 12, 2009.
Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co.
Decided on April 22, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
The judgment, entered pursuant to an order of the same court dated June 8, 2009 granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,204.50.
ORDERED that the judgment is reversed, without costs, the order dated June 8, 2009 is vacated, and plaintiff's motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits for medical supplies furnished to its assignors who were allegedly injured in a motor vehicle accident, defendant moved for summary judgment dismissing the complaint on the ground that it had not issued an insurance policy to the person who purportedly owned the vehicle involved in the accident, and that, therefore, there was no coverage. Plaintiff opposed the motion, and the Civil Court (Alice Fisher Rubin, J.), in an order entered September 12, 2007, denied the motion on the ground that triable issues of fact exist. Thereafter, plaintiff moved for summary judgment, and defendant argued in opposition to the motion that the motion should be denied since the September 12, 2007 order had already determined that there were triable issues of fact. Defendant's opposition papers consisted of essentially the same documentation that had been submitted to the court in support of its own motion for summary judgment, i.e., a police accident report indicating that plaintiff's assignor, Reuven Hafizov, was the operator of a vehicle registered to Aharon Shimonov and insured by defendant; a copy of an application for no-fault benefits seeking benefits under a purported policy issued to the purported policyholder under a purported policy number; claim denial forms denying the bills received by defendant because defendant's records indicated that Aharon Shimonov did not have a policy with defendant; and an affidavit of a claims representative stating that a search of defendant's records revealed that State Farm did not issue an insurance policy to Aharon Shimonov under the purported policy number. In an order dated June 8, 2009, the Civil Court (Robin D. Garson, J.) granted plaintiff's motion, finding that plaintiff had established its prima facie entitlement to summary judgment and that defendant had failed to raise a triable issue of fact, since it had failed to describe what steps were undertaken to search its databases in order to determine that there was no policy. A judgment was subsequently entered in favor of plaintiff, from which defendant appeals.
Since defendant raised no issue in the Civil Court or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the Civil Court's determination with respect thereto. With regard to defendant's contention that the Civil Court violated the law of the case doctrine, even if this contention is correct, this court is not bound by that doctrine and may consider the motion on its merits (see Meekins v Town of Riverhead, 20 AD3d 399 ).
In our opinion, while defendant's proof did not establish as a matter
of law that there was a lack of coverage (see Hospital for Joint
Diseases v Allstate Ins. Co., 21 AD3d 348 ; Vincent Med. Servs.,
P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY
Slip Op 52442[U] [App Term, 2d
& 11th Jud Dists 2008]), it was sufficient to raise a triable issue of fact with respect to the existence of coverage
(see Hospital for Joint Diseases, 21 AD3d 348). Contrary to the finding of the Civil Court, defendant was not required to describe in
detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the
accident (see Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]).
Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary
judgment is denied.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 22, 2011
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