Opinion
877 CA 19–00272
09-27-2019
NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Plaintiff-Appellant, v. BEACON ACUPUNCTURE, P.C., Columbus Imaging Center, LLC, Longevity Medical Supply, Inc., Defendants-Respondents, et al., Defendants.
HOLLANDER LEGAL GROUP, P.C., MELVILLE (ALLAN HOLLANDER OF COUNSEL), HARRIS J. ZAKARIN, P.C., FOR PLAINTIFF–APPELLANT.
HOLLANDER LEGAL GROUP, P.C., MELVILLE (ALLAN HOLLANDER OF COUNSEL), HARRIS J. ZAKARIN, P.C., FOR PLAINTIFF–APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety, and judgment is granted in favor of plaintiff as follows:
It is ADJUDGED and DECLARED that plaintiff is not obligated to pay the claims of defendants-respondents submitted in connection with their provision of healthcare services or medical equipment to defendant Quentin Walker.
Memorandum: Plaintiff commenced this action seeking a declaration that it was not obligated to pay certain insurance claims related to a motor vehicle accident in which, as relevant here, defendant Quentin Walker was allegedly injured. Plaintiff moved for summary judgment on the complaint against defendants-respondents (defendants), which provided healthcare services or medical equipment to Walker, and defendant Nu Age Medical Solutions, Inc. After noting that the "issue [was] limited to the bills relating to" Walker, Supreme Court denied the motion with respect to defendants. In its order, the court determined that, although plaintiff had met its initial burden and defendants had failed to raise a triable issue of fact in opposition, the motion was premature with respect to defendants. Plaintiff now appeals from the order insofar as it denied the motion in part.
We agree with plaintiff that its motion was not premature inasmuch as defendants failed to demonstrate that " ‘discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of’ " plaintiff ( Gannon v. Sadeghian, 151 A.D.3d 1586, 1588, 57 N.Y.S.3d 252 [4th Dept. 2017] ). " ‘Mere hope that somehow the [nonmovant] will uncover evidence that will [help its] case provides no basis ... for postponing a determination of a summary judgment motion’ " ( Mackey v. Sangani, 238 A.D.2d 919, 920, 661 N.Y.S.2d 124 [4th Dept. 1997] ). Further, we agree with the court that plaintiff met its burden as movant and that defendants failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). We therefore reverse the order insofar as appealed from, grant the motion in its entirety, and grant judgment in favor of plaintiff declaring that it is not obligated to pay the claims of defendants submitted in connection with their provision of healthcare services or medical equipment to defendant Quentin Walker.