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Paul Biddle, M.D. As Assignee of Camesha Duhaney v. Safeco Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 23, 2012

PAUL BIDDLE, M.D. AS ASSIGNEE OF CAMESHA DUHANEY,
RESPONDENT,
v.
SAFECO INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered November 18, 2009.

Biddle v Safeco Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 23, 2012

PRESENT: PESCE, P.J., WESTON and RIOS, 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 of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

As argued by plaintiff in opposition to defendant's motion for summary judgment, the affidavit of defendant's claims representative did not constitute evidence in admissible form (see Real Property Law § 299-a [1]). As a result, defendant's motion papers failed to establish that defendant's denial of claim form was timely and that defendant's proffered defense that plaintiff's assignor had misrepresented her residence in connection with the issuance of the subject insurance policy, was not precluded (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; cf. Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, defendant's motion for summary judgment dismissing the complaint was properly denied.

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

Decision Date: August 23, 2012

20120823

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