Queens Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Queens Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. 2012 NY Slip Op 51060(U) Decided on June 11, 2012 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-2612 K C.

Queens Medical Supply, Inc. as Assignee of DESHAUNE SPAIGHTS, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 7, 2010. The order, insofar as appealed from as limited by the brief, implicitly denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff was not entitled to recover no-fault benefits because the insurance policy had been cancelled prior to the accident. By order entered June 7, 2010, insofar as appealed from as limited by the brief, the Civil Court implicitly denied the cross motion.

On a motion by a defendant insurance company for summary judgment based on a claim that the insurance policy had been cancelled, the initial burden is on the insurer to demonstrate a valid cancellation of the insurance policy. Once the insurance company makes a prima facie showing that it had timely and validly cancelled the policy in compliance with Vehicle and [*2]Traffic Law § 313, the burden shifts to the party claiming coverage to establish noncompliance with the statutory requirements as to form and procedure (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v Roth, 56 AD3d 1244, 1245 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d 434, 435 [1994]). The papers submitted in support of defendant's cross motion were sufficient to demonstrate, prima facie, that defendant had timely and validly cancelled the insurance policy in question (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; GEICO Indem. v Roth, 56 AD3d at 1245; Montefiore Med. Ctr. v Liberty Mut. Ins. Co., 31 AD3d 724, 725 [2006]; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d at 435), thereby shifting the burden to plaintiff. In opposition to the motion, plaintiff did not raise a triable issue of fact as to the validity of the cancellation (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; Tobias v Liberty Mut. Fire Ins. Co., 78 AD3d 928 [2010]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 11, 2012