Country-Wide Ins. Co. v Metro Pain Specialists P.C., 2022 NY Slip Op 06865 (1st Dept. 2023)
“In response to Country-Wide’s prima facie showing, defendants submitted no evidence at all, much less evidence sufficient to establish the existence of material issues of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, we reject defendants’ suggestion that Country-Wide was required to show that it complied with 11 NYCRR 65-3.15’s priority of payment rule to make its prima facie case, as defendants did not raise the issue as an affirmative defense in their answer although the answer contained more than 20 other affirmative defenses”
In a declaratory judgment action or in a Civil Court action, a prima facie case involves showing that a policy was exhausted. A triable issue of fact exists when the defense or claim of improper policy exhaustion is preserved and the claim on the merits is shown not to be properly exhausted.
