Triable issue of fact as to lack of coverageApril 29, 2011
I was really close to blogging about this interesting Third Department case involving a writ of prohibition that was actually granted, preventing the Sullivan County District Attorney from retrying this poor hunter who had bad aim. (Matter of Robar v Labuda, 2011 NY Slip Op 03319 [3d Dept. 2011] . But, how many who read this are concerned with that stuff?
Anyway, an interesting case arose involving the proof required to demonstrate the failure of an insurance carrier to prima facie demonstrate lack of coverage while, interestingly, raising an issue of fact as to same.
Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50743(U)(App. Term 2d Dept. 2011):
Here was the proof that was presented: “Defendant’s opposition papers consisted of a police accident report indicating that plaintiff’s assignor, Reuven Hafizov, was the operator of a vehicle registered to Aharon Shimonov and insured by defendant; a copy of an application for no-fault benefits seeking benefits under a purported policy issued to the purported policyholder under a purported policy number; claim denial forms denying the bills received by defendant because defendant’s records indicated that Aharon Shimonov did not have a policy with defendant; and an affidavit of a claims representative stating that a search of defendant’s records revealed that State Farm did not issue an insurance policy to Aharon Shimonov under the purported policy number.”
What was missing? An affidavit from an underwriter.
Interesting observation also: “Contrary to the finding of the Civil Court, 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 (see Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]).”
Finally, for purposes of Mr.Gottlieb’s CPLR blog and something that is quite interesting: “With regard to defendant’s contention that the Civil Court violated the law of the case doctrine, even if this contention is correct, this court is not bound by that doctrine and may consider the motion on its merits”