St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (2d Dept. 2010)
“In support of its cross motion, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the accident in which the plaintiff’s assignor was injured was not an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; see generally Alvarez v Prospect Hosp., 68 NY2d 320). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d at 199).”
Since i wondered what this case was about, I copied the relevant portions of the motion papers from the clerk’s office. Here is what I found out:
This case involves the “my car was not there” defense. There were numerous EUO’s that were done in this case and, without going into detail, the substance of the proof was sufficient to grant defendant summary judgment.
As to the form of the papers, the defendant annexed uncertified EUO transcripts and documentation without a business record foundation or other type of foundation. Plaintiff in his opposition papers objected to the form of Defendant’s evidentiary presentation. While I was unable to read the appellate briefs, I would imagine that Plaintiff’s admissibility argument was also presented in its Respondent’s brief. Thus, it seems interesting that Defendant was able to get this decision reversed.
