Summary judgment is limited to what is pleaded upon the moving papersFebruary 26, 2014


“Here, in light of the limited basis of the plaintiff’s motion for summary judgment on the complaint, which was premised solely on the defendant’s alleged failure to timely pay or deny the no-fault claim within 30 days of receipt of proof of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1], [c]), “the defendant’s only burden in opposition . . . was to raise a triable issue of fact regarding its timely . . . denial of the [plaintiff’s] claim” (Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905, 905; see Viviane Etienne Med. Care, P.C., v Country-Wide Ins. Co., _____ AD3d _____, 2013 NY Slip Op 08430 [2d Dept 2013]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082-1083). In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the defendant satisfied its burden by raising a triable issue of fact as to whether it did in fact mail a proper NF-10 denial of claim form to the plaintiff only 22 days after its receipt of the claim verification that it had previously requested”

This shift has been years in the making, based upon the Westchester-Liberty case that came out a few years ago.  To reach the merits of the defense, the plaintiff needs to show the defense lacks merit.  Thus on medical necessity case, plaintiff must affirmatively show that the service is medially appropriate; On a DWI case (which this case was), Plaintiff must show that Defendant was not drunk or that the intoxication was not a proximate cause of the loss.  It is an interesting standard and, in practice, the only reason a plaintiff moves for summary judgment is to establish its prima facie case.  CPLR 3212(g).  I wonder when the Appellate Division will (if ever) reach this discrete issue.