New Way Med. Supply Corp. v Infinity Group

[*1] New Way Med. Supply Corp. v Infinity Group 2015 NY Slip Op 51880(U) Decided on December 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2014-854 Q C

New Way Medical Supply Corp. as Assignee of Obi Emeka, Appellant, -

against

Infinity Group, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), dated April 1, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits for supplies furnished to its assignor for injuries he had sustained in a motor vehicle accident on May 19, 2011, defendant moved for summary judgment dismissing the complaint. Defendant argued that a conflict-of-law analysis required the application of Pennsylvania law, pursuant to which there was a lack of coverage based on the cancellation of the underlying Pennsylvania insurance policy on May 12, 2011, due to the nonpayment of a premium. By order dated April 1, 2014, the Civil Court granted defendant's motion, finding that defendant had established that the Pennsylvania policy had been "properly cancelled prior to the subject collision and therefore there is no coverage available." On appeal, plaintiff contends, among other things, that defendant's motion should have been denied because defendant failed to establish that the notice of cancellation had been properly mailed.

At the outset, we note that while, in the Civil Court, plaintiff argued that Pennsylvania law did not control, on appeal, plaintiff has abandoned this argument.

In Pennsylvania, in order for an insurance policy to be cancelled due to the nonpayment of premiums, the "notice of cancellation must be in strict accordance with the provisions of Act 68. An insurance policy may be cancelled by mailing to the named insured, at the address shown in the policy, a written notice of cancellation. If the notice sets forth a time period in which intervening action may negate the cancellation, the cancellation shall not become effective until the expiration of the time period" (Nationwide Ins. Co. v Pennsylvania Ins. Dept., 779 A2d 14, 17 [Pa Cmmw 2001]; see Donegal Mut. Ins. Co. v Pennsylvania Dept. of Ins., 694 A2d 391 [Pa Cmmw 1997]; see also 40 P.S. § 991.2006). Inasmuch as defendant failed to attach a copy of the insurance policy, or the declaration page of the policy, to its motion papers, it is impossible to determine whether the notice of cancellation was mailed to the insured "at the address shown in the policy" (40 P.S. § 991.2006). Consequently, defendant failed to establish as a matter of law that the insurance policy had been properly cancelled as of May 12, 2011 in accordance with [*2]Pennsylvania law and that, therefore, no coverage existed when the accident in question occurred on May 19, 2011.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

Decision Date: December 14, 2015