[*1]
Empire State Med. Supplies, Inc. v Sentry Ins.
2017 NY Slip Op 50403(U) [55 Misc 3d 130(A)]
Decided on March 31, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1189 K C

Empire State Medical Supplies, Inc., as Assignee of Craig Mckee, Respondent,

against

Sentry Insurance, Appellant.


Gallo Vitucci Klar, LLP, Yolanda L. Ayala, Esq., for appellant. Sierra K. Page, Esq., P.C., Zara Javakov, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 19, 2015. The order, insofar as appealed from, denied defendant's cross 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 appeals from so much of an order of the Civil Court as denied defendant's cross motion for summary judgment dismissing the complaint on the ground that there were triable issues of fact regarding the insured's alleged material misrepresentations in the procurement of the insurance policy.

In support of its cross motion, defendant submitted the affidavit of its senior claims examiner which failed to establish that defendant had timely denied plaintiff's claims (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant failed to demonstrate that it was not precluded from asserting the insured's alleged misrepresentations in connection with the issuance of the [*2]policy. Consequently, defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint.

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

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



ENTER:
Paul Kenny
Chief Clerk

Decision Date: March 31, 2017