Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am.

Full title: TAM Medical Supply Corp., as Assignee of WILLIAM MEJIA, Appellant, v…

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

Date published: Sep 19, 2016

2016 N.Y. Slip Op. 51352 (N.Y. App. Term 2016)

46 N.Y.S.3d 477

Opinion

2013-2394 Q C

09-19-2016

TAM Medical Supply Corp., as Assignee of WILLIAM MEJIA, Appellant, v. Fiduciary Insurance Company Of America, Respondent.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 27, 2013. The order, insofar as appealed from, granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contention, the affidavit of defendant's claims examiner established that defendant had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred. Moreover, the denial of claim form informed plaintiff that it had the opportunity to "submit[] written proof providing clear and reasonable justification for the failure" to timely advise defendant of the accident (11 NYCRR §§ 65-1.1, 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant's receipt of the NF-2 form. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[A]; Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur. Decision Date: September 19, 2016