Utopia Equip. Inc. v. Chubb Indem. Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 21, 2017
• Docket: 2017 NYSlipOp 50540(U)
• Status: Published

Opinion

Utopia Equipment Inc., a/a/o Elizabeth Reveiz, Plaintiff-Appellant, -

against

Chubb Indemnity Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated September 26, 2014, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Lynn R. Kotler, J.), dated September 26, 2014, reversed, without costs, motion denied and the complaint reinstated.

Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff's alleged untimely submission of the no-fault claims beyond the applicable 45—day time limit (see 11 NYCRR 65—1.1[d]). The affidavit of defendant's claims adjuster failed to describe defendant's "regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims" (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), and was inadequate to demonstrate that plaintiff's bills were not timely received within the 45—day period (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]). Given defendant's failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 21, 2017