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Title : "Not It" Affidavit Sufficient to Merit Summary Judgment on Lack of Coverage Defense
link : "Not It" Affidavit Sufficient to Merit Summary Judgment on Lack of Coverage Defense

"Not It" Affidavit Sufficient to Merit Summary Judgment on Lack of Coverage Defense

NO-FAULT – LACK OF COVERAGE DEFENSE
New Way Med. Supply Corp. v. Dollar Rent A Car
(App. Term, 2nd Dept., decided 12/8/2015)

In support of its motion for summary judgment to dismiss this provider recovery action, Dollar Rent A Car submitted an affidavit from its third-party claims examiner, which stated:

     2.  [A] Dollar vehicle was not involved in an alleged vehicular collision on June 18, 2011, a loss for which plaintiff's assignor allegedly received medical treatment[.] 

     6.  The claimant Jacen Adams (nor Adams Jacen) did not appear in any claimant name search. There are no records of an accident associated with said individual in Dollar's system.  

     7.  Secondly, Dollar is a self-insured entity and does not issue automobile policies to individuals or other entities.  

     8.  Based upon the foregoing, I can attest with certainty that a Dollar vehicle was not involved in this particular vehicular collision on June 18, 2011, the loss for which plaintiff claims entitlement to No-Fault reimbursement.

Plaintiff provider argued that Dollar's denial of coverage as supported by this affidavit was insufficient to warrant summary judgment.  Queens Civil (Cheree A. Buggs, J.) and the Appellate Term disagreed:

In our view, contrary to plaintiff's contention on appeal, this was sufficient to establish, prima facie, defendant's lack of coverage defense (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Jesa Med. Supply, Inc. v NYC Tr. Auth., 38 Misc 3d 138[A], 2013 NY Slip Op 50188[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, contrary to plaintiff's further contention on appeal, "defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident" (Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U], *1). In opposition to defendant's prima facie showing, plaintiff failed to demonstrate the existence of a triable issue of fact.

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