RX Warehouse Pharm., Inc. v 21st Century Ins. Co., 2022 NY Slip Op 50375(U)(App. Term 2d Dept. 2022)
PA policy and NJ accident. The NJ deemer law would increase the PA medical payments coverage to New Jersey’s $15,000 PIP deemed limit. There was a recent case in NJ that backed off from a $250,000 “deemer” and limits the deemer to $15,000.
The Court poked many holes in Plaintiff’s proof presentations. The police report was not certified (probably too old) and the NF-2 was included in the Reply papers. Appellate Term properly denied the motion.
“In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate that the underlying accident had occurred in New Jersey and, thus, that the action should be dismissed based upon forum non conveniens. The police report, offered for the truth of the matter asserted therein, constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]; Monroe v Foremost Signature Ins. Co., 66 Misc 3d 128[A], 2019 NY Slip Op 52042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Longevity Med. Supply, Inc. v 21st Century Ins. Co., 66 Misc 3d 128[A], 2019 NY Slip Op 52041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, defendant could not rely on the copy of the NF-2 no-fault application, which stated where the accident occurred, because it was first submitted in defendant’s reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc 3d 145[A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant failed to submit sufficient evidence to support a dismissal based on forum non conveniens (see CPLR 327 [a]). The evidence showed that plaintiff is a New York corporation and that defendant has offices in New York, and defendant failed to point to any hardship for possible witnesses or any burden on the New York courts (see Kefalas v Kontogiannis, 44 AD3d 624 [2007]). Upon the record presented, we find that the Civil Court erred in granting the branch of defendant’s motion seeking dismissal based on forum non conveniens.”
