Opinion
2007-1502 Q C. No. 2007-1502 Q C.
Decided December 2, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 30, 2007. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. Insofar as is relevant to this appeal by defendant, the court properly denied defendant's cross motion for summary judgment, as defendant's proof failed to eliminate all triable issues of material fact ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Defendant failed to establish prima facie that its claim denials were timely, thereby permitting it to interpose the precludable defenses of untimely notices of claim and proofs of claim. In any event, defendant failed to demonstrate as a matter of law that such defenses have merit. With respect to defendant's second ground for summary judgment, its defense based on lack of coverage, while defendant's documentation established that the vehicle occupied by plaintiff's assignor in the underlying motor vehicle accident was not insured by defendant under the policy number claimed, defendant failed even to allege, much less prove prima facie, that it did not insure that vehicle on the date of the loss.
Accordingly, defendant failed to shift the burden and, thus, the order denying its cross motion for summary judgment is affirmed.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., concurs in a separate memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I disagree with its finding that "[d]efendant failed to establish prima facie that its claim denials were timely. . . ."
To the contrary, I find that the affidavit by defendant's litigation examiner was sufficient to establish timely mailing by someone with personal knowledge of the office practices as well as having personal responsibility to assure that those practices were carried out.