New Way Med. Supply Corp. v Dollar Rent A Car

[*1] New Way Med. Supply Corp. v Dollar Rent A Car 2015 NY Slip Op 51794(U) Decided on December 8, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-356 Q C

New Way Medical Supply Corp. as Assignee of Jacen Adams, Appellant,

against

Dollar Rent A Car, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 7, 2014. The order granted defendant's 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, defendant moved for summary judgment dismissing the complaint on the ground that it has no insurance policy with plaintiff's assignor. Plaintiff appeals from an order which granted defendant's motion.

In support of its motion, defendant submitted an affidavit from its third-party claims examiner, which states, among other things:

"2. [A] Dollar vehicle was not involved in an alleged vehicular collision on June 18, 2011, a loss for which plaintiff's assignor allegedly received medical treatment.
. . .
6. The claimant Jacen Adams (nor Adams Jacen) did not appear in any claimant name search. There are no records of an accident associated with said individual in Dollar's system.
7. Secondly, Dollar is a self-insured entity and does not issue automobile policies to individuals or other entities.
8. Based upon the foregoing, I can attest with certainty that a Dollar vehicle was not involved in this particular vehicular collision on June 18, 2011, the loss for which plaintiff claims entitlement to No-Fault reimbursement."

In our view, contrary to plaintiff's contention on appeal, this was sufficient to establish, prima facie, defendant's lack of coverage defense (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d, 11th & [*2]13th Jud Dists 2014]; Jesa Med. Supply, Inc. v NYC Tr. Auth., 38 Misc 3d 138[A], 2013 NY Slip Op 50188[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, contrary to plaintiff's further contention on appeal, "defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident" (Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U], *1). In opposition to defendant's prima facie showing, plaintiff failed to demonstrate the existence of a triable issue of fact.

As plaintiff's remaining arguments lack merit, the order is affirmed.

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

Decision Date: December 08, 2015