Ultimate Health Prods., Inc. v. Hereford Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 16, 2016
• Docket: 2016 NYSlipOp 50367(U)
• Status: Published

Opinion

Ultimate Health Products, Inc., as Assignee of PAUL LUCKNER, Appellant,

against

Hereford Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment, and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy covering the underlying accident.

Contrary to plaintiff's contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer's denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its cross motion were sufficient to establish that the policy being sued upon was a workers' compensation insurance policy which did not cover plaintiff's claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact in opposition to defendant's cross motion, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 16, 2016