Firm News 12/11/2006

Business Interruption.  First Department affirms summary judgment in favor of insured on a business interruption claim in which recovery for certain damaged merchandise was at issue.  Court finds that insurer was entitled to deduct a payment previously made for damaged merchandise at its selling price.  Court finds insured’s claim that deduction should not be taken because payment for the merchandise was not received in the normal course of business is essentially a request for uncovered consequential damages.  J&R Electronics Inc. v. One Beacon Ins. Co., 2006 WL 3489971 (1st Dept. December 5, 2006).

Common-Law Indemnification.  First Department affirms denial of third-party plaintiff’s motion for summary judgment for common law indemnification where third-party plaintiff was the owner of an auto involved in a collision, and third-party defendant was the driver.  Court finds questions of fact regarding the parties’ respective negligence.  Kramer v. The City of New York, 2006 WL 3490430 (1st Dept. December 5, 2006).

First-Party No-Fault.  Court finds provider’s motion for summary judgment was properly denied where plaintiff failed to provide proof of mailing of its claims, but that insurer’s motion for summary judgment should have also been denied where insurer offered no admissible proof that it never received the claim or that the claim was untimely.  Forest Chen Acupuncture Services, P.C. v. Nationwide Mut. Ins. Co., 2006 WL 3437803 (Sup. Ct. App. Term November 17, 2006).

First-Party No-Fault.  Court reverses denial of provider’s motion for summary judgment.  Provider proved prima facie case through annexation of defendant’s denial reflecting submission of the claims.  Insurer failed to produce proof of a timely verification request, precluding insurer from raising most defenses.  Court observes that although the defense of a fraudulent scheme is not precluded, such a defense does not lie based on allegations of excessive billing or lack of medical necessity.  Dilon Medical Supply Corp. v. State Farm Mut. Auto. Ins. Co., 2006 WL 3437826 (Sup. Ct. App. Term November 17, 2006).

Common-Law Indemnification.  Second Department affirms denial of third-party plaintiff’s motion for summary judgment for common law indemnification against plaintiff’s employer that owned the van involved in a collision.  Court finds questions of fact regarding the parties’ respective negligence.  Fleming v. Graham, 2006 WL 3307349 (2d Dept. November 14, 2006).

First-Party No-Fault.  Court finds insurer’s motion for summary judgment was properly denied where insurer timely denied medical supplier’s claim, but the denial failed to satisfy the statutory requirement that the insurer fully and explicitly state the reason for the denial.  Expo Medical Supplies, Inc. v. St. Paul Fire & Marine Ins. Co., 2006 WL 3437499 (Sup. Ct. App. Term November 13, 2006).

First-Party No-Fault.  Court affirms trial court’s order granting plaintiff’s motion for summary judgment where plaintiff submitted proof that it filed claims setting forth the facts and amounts of the claims, and that benefits were overdue.  Court finds that insurer’s accident analysis report challenging the medical causation of assignor’s injuries submitted for the first time in sur-reply was properly precluded from consideration.  Executive MRI Imaging, P.C. v. New York Central Mutual Fire Ins. Co., 2006 WL 3437501 (Sup. Ct. App. Term November 13, 2006).