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Superior Medical Equipment & Supply As Assignee of Ravin Smith v. Merchants & Businessmens Mutual Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


October 25, 2011

SUPERIOR MEDICAL EQUIPMENT & SUPPLY AS ASSIGNEE OF RAVIN SMITH,
RESPONDENT,
v.
MERCHANTS & BUSINESSMENS MUTUAL INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered February 2, 2010.

Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co.

Decided on October 25, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

A review of the record indicates that defendant established its prima facie entitlement to summary judgment by the affidavit of the claims representative of its third-party administrator in which she stated that the subject vehicle was not insured by defendant until three weeks after the July 15, 2002 accident. The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, plaintiff argued that, within 14 days of the July 11, 2002 purchase of the subject vehicle, the owner directed his insurance broker, allegedly defendant's agent, to have the vehicle added to the owner's existing insurance policy that he had with defendant, which notification was a condition precedent to defendant insuring the vehicle, retroactive to the date of purchase, as a newly acquired automobile under the existing policy. In addition, plaintiff's opposition papers included defendant's own "Auto Policy Declaration" for the vehicle's owner, which lists the insurance broker as "Agency 11868." The foregoing creates an issue of fact as to whether the broker had "a general authority" (Indian Country v Pennsylvania Lumbermens Mut. Ins. Co., 284 AD2d 712, 714-715 [2001]) to represent defendant (see Rendeiro v State-Wide Ins. Co., 8 AD3d 253 [2004]). Consequently, defendant's motion for summary judgment was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: October 25, 2011

20111025

© 1992-2011 VersusLaw Inc.



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