Sunrise Acupuncture P.C. v. Kemper Independence Ins. Co.

Full title: SUNRISE ACUPUNCTURE P.C. a/a/o Sharise Davis, Plaintiff–Respondent, v…

Court: Supreme Court, Appellate Term, First Department, New York.

Date published: Jan 13, 2016

31 N.Y.S.3d 924 (N.Y. App. Term 2016)

Opinion

No. 570424/15.

01-13-2016

SUNRISE ACUPUNCTURE P.C. a/a/o Sharise Davis, Plaintiff–Respondent, v. KEMPER INDEPENDENCE INSURANCE COMPANY, Defendant–Appellant.

PER CURIAM.

Order (Elizabeth A. Taylor, J.), entered July 5, 2013, affirmed, with $10 costs.

We sustain the denial of defendant-insurer's motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the “legal representative of the deceased,” defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision (see Marvul v. Knecht, 216 A.D.2d 370, 371 [1995], lv denied 86 N.Y.2d 710 [1995] ).

In view of our disposition, we have no occasion to address whether such policy provision would, as a matter of law, preclude the underlying no-fault claim (see Vehicle and Traffic Law § 388[1], [4] ; Lumbermen's Mut. Cas. Co. v. Brown, 20 N.Y.2d 542 [1967] ), an issue not fully briefed by the parties.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur