SK Prime Med. Supply v. Country Wide Ins. Co.

SK Prime Med. Supply v Country Wide Ins. Co. (2021 NY Slip Op 51204(U)) [*1] SK Prime Med. Supply v Country Wide Ins. Co. 2021 NY Slip Op 51204(U) [73 Misc 3d 142(A)] Decided on December 10, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 10, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ 2019-456 K C SK Prime Medical Supply, as Assignee of Evans, Eddie, Respondent, against Country Wide Insurance Company, Appellant. Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 28, 2019. The order denied defendant's cross motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted. 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 dismissing the complaint on the ground that defendant had not issued an insurance policy covering the accident in question. The Civil Court denied defendant's cross motion without addressing plaintiff's motion for summary judgment. In support of its cross motion, defendant submitted an affidavit from its underwriting department's New Business Supervisor which was sufficient to demonstrate that defendant had not issued a policy covering the subject loss (see Pavlova v Country Wide Ins. Co., 59 Misc 3d 151[A], 2018 NY Slip Op 50843[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In opposition to defendant's prima facie showing that there was no coverage in effect at the time of the accident, plaintiff failed to demonstrate the existence of a triable issue of fact. As a result, defendant's cross motion for summary judgment should have been granted and, consequently, there is no need to remit the matter to the Civil Court for further proceedings upon plaintiff's motion for summary judgment (see New Millennium Med. Imaging, P.C. v Charter Oak Fire Ins. Co., 64 Misc 3d 137[A], 2019 NY Slip Op 51163[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova, 2018 NY Slip Op 50843[U]; New Way Med. Supply Corp. v Dollar Rent A [*2]Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Accordingly, the order is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted. ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 10, 2021