Flatbush Chiropractic, P.C. v Omni Indem. Co.

[*1] Flatbush Chiropractic, P.C. v Omni Indem. Co. 2014 NY Slip Op 51235(U) Decided on July 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-2088 Q C

Flatbush Chiropractic, P.C. as Assignee of GERARD EDOUARD RIBOUL, Appellant,

against

Omni Indemnity Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered August 6, 2012. The order, insofar as appealed from, granted defendant's motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the vehicle which was involved in the accident in question and that, therefore, plaintiff had sued the wrong party. Plaintiff opposed the motion and appeals from so much of an order of the Civil Court as granted defendant's motion.

In support of its motion, defendant submitted affidavits by its litigation manager and by a manager of American Independent Insurance Company (AIIC), which affidavits sufficiently established defendant's lack of coverage defense (see Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Notably, the AIIC manager attested that her company had issued the policy covering the accident in question. Consequently, as defendant demonstrated that plaintiff had sued the wrong insurance carrier, defendant was entitled to summary judgment dismissing the complaint (see Vincent Med. Servs., P.C. v Omni Indem. Co., 42 Misc 3d 142[A], 2014 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: July 28, 2014