Compas Med., P.C. v Farm Family Cas. Ins. Co., 2013 NY Slip Op 50254(U)(App. Term 2d Dept. 2013)
hPlaintiff made his prima facie case based upon: i) his motion ([a] “In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its [*2]president which established that the claim forms had been mailed to defendant[;][b] The affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff’s motion were admissible pursuant to CPLR 4518); and ii)Defendant’s cross-motion (“As to plaintiff’s first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs), were untimely”)
The reason you can say this is because on the same day (Medical Assoc., P.C. v Clarendon Natl. Ins. Co., 2013 NY Slip Op 50248(U)[App. Term 2d Dept. 2013]) and on many days, similar proof was insufficient to make a prima facie case because: “plaintiff’s cross motion failed to establish plaintiff’s prima facie case because the affidavit submitted in support of the cross motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law.”
But Compas goes to show how a plaintiff will sacrifice prima facie just to avoid going head to head with Unitrin. It also shows why plaintiff firms will “locate” in Nassau County so that they can get arbitration hearings in Second Department venues where Unitrin will not be followed.
Finally, this shows again how in no-fault, the rule that a court should not consider the sufficiency of the opponents papers if the movant fails to make a prima facie case is completely ignored.
