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”

3 Responses

  1. Raymond Zuppa says:


    When does it end … the stupidity. The App Term 2 would turn law into an episode of Judge Judy.

    You can’t say “I don’t have it” without describing what you did to find it. It is hornbook law that an Affidavit cannot merely state a conclusion bereft of obversation to support the conclusion.

    How just utterly dumb is it going to get.

    This is so bias. Why must the providers go through the Dan Madical song and dance — I spelt “Medical” as “Madical” in homage to the voice that answers “Madical Clinic.” Why can’t they say “I mailed it” just like the insurance company can say “I don’t have it.” How can the law continue to be ruined like this.

    I think hunters should have to spend time with a beast or two — weaponless — before they are allowed to hunt. A hunter with a knife against a Grizzly (I allowed him the knife) A hunter with a knife against a Moose or even just a 6 Point White Tail Deer. Or a hunter and me — the ultimate beast.

  2. nycoolbreez says:

    So I guess under this case all defendants need to say now is that it is possible there is no coverage, since they don’t have to show there was no coverage as a matter of law, which seems a little counter intuitive to me, but then again what do i know

    BTW didnt read the latest ROBAR decision but did read the one that said the guy should have made sure that he was shooting at a deer and that shooting thorough a bush naturally casuses the bullet to richochet and therefore the guy was reckless… just to let you know some people are interested in interesting things

  3. raymond Zuppa says:

    I need someplace to say this. Congrats to our service men and women for taking out that killer.

    Please I already heard it on FOX. No credit to Bush for “setting the stage.” Just give it where it belongs. Our boys and girls in the military and intelligence community.

    And Obama kept exactly one promise. He sent ground troops into Pakistan to get that killer thug.

    Now let’s bring the boys and girls back home.