Sunrise Acupuncture P.C. v Kemper Independence Ins. Co.

[*1] Sunrise Acupuncture P.C. v Kemper Independence Ins. Co. 2016 NY Slip Op 50025(U) Decided on January 13, 2016 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570424/15

Sunrise Acupuncture P.C. a/a/o Sharise Davis, Plaintiff-Respondent, -

against

Kemper Independence Insurance Company, Defendant-Appellant.

Defendant appeals of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 5, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 5, 2013, affirmed, with $10 costs.

We sustain the denial of defendant-insurer's motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the "legal representative of the deceased," defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision (see Marvul v Knecht, 216 AD2d 370, 371 [1995], lv denied 86 NY2d 710 [1995]).

In view of our disposition, we have no occasion to address whether such policy provision would, as a matter of law, preclude the underlying no-fault claim (see Vehicle and Traffic Law § 388[1], [4]; Lumbermen's Mut. Cas. Co. v Brown, 20 NY2d 542 [1967]), an issue not fully briefed by the parties.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 13, 2016