Great Health Care Chiropractic, P.C. v. Infinity Grp.

Full title: GREAT HEALTH CARE CHIROPRACTIC, P.C., as Assignee of Roseline Amusu…

Court: Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Date published: Mar 1, 2016

2016 N.Y. Slip Op. 50257 (N.Y. App. Term 2016)

36 N.Y.S.3d 47

Opinion

2014-1016 Q C

03-01-2016

Great Health Care Chiropractic, P.C., as Assignee of ROSELINE AMUSU GARCIA, Respondent, v. Infinity Group, Appellant.

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

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff was ineligible for reimbursement of no-fault benefits due to the cancellation of the Pennsylvania automobile insurance policy at issue in this case, as a result of the policyholder's nonpayment of premiums. By order entered April 3, 2014, from which defendant appeals, the Civil Court denied defendant's motion on the ground that defendant's notice of termination of the policy did not comply with the requirements of Pennsylvania law.

In order to prevail on its motion for summary judgment dismissing the complaint, defendant was required to demonstrate that the insurance policy at issue had been validly cancelled in accordance with Pennsylvania law (see generally Compas Med., P.C. v Infinity Group, 46 Misc 3d 146[A], 2015 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Although defendant's motion papers contained a supporting affirmation by defense counsel and accompanying documents, and purported to include an affidavit by defendant's litigation specialist, in fact, the affidavit of defendant's litigation specialist was not included. In the absence of that affidavit, defendant failed to show that it had fully complied with Pennsylvania's requirements for cancelling a policy due to nonpayment of premiums. As a result, defendant did not establish its prima facie entitlement to summary judgment dismissing the complaint.

We decline plaintiff's request to search the record and award it summary judgment.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur. Decision Date: March 01, 2016