Provident Life & Casualty Insurance v. Brittenham

Appellate Division of the Supreme Court of New York

Provident Life & Casualty Insurance v. Brittenham

2 A.D.3d 824, 769 N.Y.S.2d 735

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 2003

StatusPublished

This text of 2 A.D.3d 824 (Provident Life & Casualty Insurance v. Brittenham) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Provident Life & Casualty Insurance v. Brittenham, 2 A.D.3d 824, 769 N.Y.S.2d 735 (N.Y. Ct. App. 2003).

Pincite

Opinion

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay the defendant under the terms of certain disability insurance policies, the defendant appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated May 13, 2002, as denied that branch of his motion which was for summary judgment on the issue of liability on his counterclaims seeking benefits under the subject policies.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). Accordingly, the Supreme Court correctly denied the defendant’s motion for summary judgment on the issue of liability on his counterclaims seeking benefits under the subject policies.

The plaintiffs contention that the Supreme Court erred in its construction of certain terms in the subject policies is not properly before this Court. Smith, J.P., Luciano, H. Miller and Townes, JJ., concur.

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In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay the defendant under the terms of certain disability insurance policies, the defendant appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated May 13, 2002, as denied that branch of his motion which was for summary judgment on the issue of liability on his counterclaims seeking benefits under the subject policies.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). Accordingly, the Supreme Court correctly denied the defendant’s motion for summary judgment on the issue of liability on his counterclaims seeking benefits under the subject policies.

The plaintiffs contention that the Supreme Court erred in its construction of certain terms in the subject policies is not properly before this Court. Smith, J.P., Luciano, H. Miller and Townes, JJ., concur.

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Bluebook (online)

2 A.D.3d 824, 769 N.Y.S.2d 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provident-life-casualty-insurance-v-brittenham-nyappdiv-2003.

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