Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am.

Appellate Terms of the Supreme Court of New York

Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am.

CourtAppellate Terms of the Supreme Court of New York

DecidedSeptember 19, 2016

Docket2016 NYSlipOp 51352(U)

StatusPublished

This text of Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am. (Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am., (N.Y. Ct. App. 2016).

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Opinion

<br><br><div align="center"><b><font size="+1">TAM Medical Supply Corp., as Assignee of WILLIAM MEJIA, Appellant,

<br><br>against<br><br>Fiduciary Insurance Company Of America, Respondent.</font></b></div><br><br>

<p>Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 27, 2013. The order, insofar as appealed from, granted defendant's cross motion for summary judgment dismissing the complaint.</p>

<p>ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.</p>

<p>In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint.</p>

<p>Contrary to plaintiff's contention, the affidavit of defendant's claims examiner established that defendant had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred. Moreover, the denial of claim form informed plaintiff that it had the opportunity to "submit[] written proof providing clear and reasonable justification for the failure" to timely advise defendant of the accident (11 NYCRR 65-1.1, 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff (<a href="../2012/2012_51660.htm" target="_blank"><i>see Jamaica Med. Supply, Inc. v NY City Tr. Auth.</i>, 36 Misc 3d 150</a>[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant's receipt of the NF-2 form. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (<a href="../2012/2012_51660.htm" target="_blank"><i>see Jamaica Med. Supply, Inc. v NY City Tr. Auth.</i>, 36 Misc 3d 150</a>[A], 2012 NY Slip Op 51660[A]; <a href="../2011/2011_52018.htm" target="_blank"><i>Comfort Supply, Inc. v Clarendon Natl. Ins. Co.</i>, 33 Misc 3d 135</a>[A], 2011 NY Slip Op 52018[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).</p>

<p>Accordingly, the order, insofar as appealed from, is affirmed.</p>

<p>Pesce, P.J., Aliotta and Solomon, JJ., concur.</p>

<br>Decision Date: September 19, 2016

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<br><br><div align="center"><b><font size="+1">TAM Medical Supply Corp., as Assignee of WILLIAM MEJIA, Appellant,

<br><br>against<br><br>Fiduciary Insurance Company Of America, Respondent.</font></b></div><br><br>

<p>Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 27, 2013. The order, insofar as appealed from, granted defendant's cross motion for summary judgment dismissing the complaint.</p>

<p>ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.</p>

<p>In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint.</p>

<p>Contrary to plaintiff's contention, the affidavit of defendant's claims examiner established that defendant had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred. Moreover, the denial of claim form informed plaintiff that it had the opportunity to "submit[] written proof providing clear and reasonable justification for the failure" to timely advise defendant of the accident (11 NYCRR 65-1.1, 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff (<a href="../2012/2012_51660.htm" target="_blank"><i>see Jamaica Med. Supply, Inc. v NY City Tr. Auth.</i>, 36 Misc 3d 150</a>[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant's receipt of the NF-2 form. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (<a href="../2012/2012_51660.htm" target="_blank"><i>see Jamaica Med. Supply, Inc. v NY City Tr. Auth.</i>, 36 Misc 3d 150</a>[A], 2012 NY Slip Op 51660[A]; <a href="../2011/2011_52018.htm" target="_blank"><i>Comfort Supply, Inc. v Clarendon Natl. Ins. Co.</i>, 33 Misc 3d 135</a>[A], 2011 NY Slip Op 52018[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).</p>

<p>Accordingly, the order, insofar as appealed from, is affirmed.</p>

<p>Pesce, P.J., Aliotta and Solomon, JJ., concur.</p>

<br>Decision Date: September 19, 2016

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Tam Med. Supply Corp. v. Fiduciary Ins. Co. of Am., Counsel Stack Legal Research, https://law.counselstack.com/opinion/tam-med-supply-corp-v-fiduciary-ins-co-of-am-nyappterm-2016.