Opinion
2019-77 K C
11-13-2020
GENTLECARE AMBULATORY ANESTHESIA SERVICES; Lyonel F. Paul M.D., as Assignee of Chaundry, Figaro, Respondent, v. HEREFORD INSURANCE CO., Appellant.
Goldberg, Miller and Rubin, P.C. (Timothy R. Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Goldberg, Miller and Rubin, P.C. (Timothy R. Bishop of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ.
ORDERED that the judgment is reversed, with $30 costs, the order dated November 8, 2018 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy which would cover the underlying accident, and granting plaintiff's cross motion for summary judgment. A judgment was subsequently entered on December 19, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c] ).
"[A] lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer's denial of claim form (see Zappone v. Home Ins. Co. , 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v. Chubb Group of Ins. Cos. , 90 NY2d 195 [1997] ). The papers submitted by defendant in support of its [ ] motion were sufficient to establish that the policy being sued upon was a workers' compensation insurance policy which did not cover plaintiff's claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact, [defendant's motion for summary judgment should have been granted]" ( Ultimate Health Prods., Inc. v. Hereford Ins. Co. , 51 Misc 3d 127[A], 2016 NY Slip Op 50367[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Flatbush Chiropractic, P.C. v. Hereford Ins. Co. , 49 Misc 3d 149[A], 2015 NY Slip Op 51712[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).
Accordingly, the judgment is reversed, the order dated November 8, 2018 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion is denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.