Opinion
No. 2014–419 Q C.
08-18-2015
TAM MEDICAL SUPPLY CORP. as Assignee of Woldine Destin, Appellant, v. OMNI INDEMNITY COMPANY, Respondent.
Opinion
ORDERED that the order entered January 30, 2014, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved on January 22, 2013 for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the accident in question and, thus, plaintiff had sued the wrong party. In support of its motion, defendant proffered affidavits of its litigation manager, who stated that defendant's search had confirmed that defendant had not issued the subject policy, and of a manager of American Independent Insurance Company (AIIC), who attested that a search had confirmed that the policy at issue was an AIIC policy. In opposition papers served on July 5, 2013, plaintiff argued that the affidavits submitted by defendant were conclusory. Defendant submitted a reply affirmation of counsel, dated September 26, 2013. By order entered October 7, 2013, the Civil Court granted defendant's motion and dismissed the complaint with prejudice. Plaintiff then moved, pursuant to CPLR 2221(d), for leave to “reargue” its opposition to defendant's prior motion. We deem plaintiff's motion to be one for leave to renew its opposition to defendant's motion, as plaintiff supported its motion with new facts that were not previously offered in opposition to defendant's motion (see CPLR 2221[e]2 ). By order entered January 30, 2014, the Civil Court, upon, in effect, renewal, adhered to the prior determination.
In an affirmation in support of the renewal motion, plaintiff's counsel argued that testimony at a September 17, 2013 deposition in another action, by a party whom counsel identified as vice president of claims at AIIC, raises questions of fact with respect to defendant's relationship with AIIC. Plaintiff's counsel contended that defendant is “absolutely an alter-ego and is absolutely controlled by AIIC.” Thus, plaintiff's counsel asserted that defendant's proffered basis for dismissal—that the subject insurance policy was AIIC's and not Omni Indemnity Company's policy—lacks merit.
A review of the transcript of the deposition reveals that the deponent stated that he was vice president of claims, employed by defendant's parent company, which is American Independent Companies, Inc., and not AIIC; that AIIC is “an arm” of the parent company; and that his company, that is, the parent company, determined the corporate policy for defendant.
In our view, the transcript of the deposition is inadmissible, as the testimony was not sworn to by the witness and the transcript was not certified (see CPLR 3116; Lifex Med. Care, P.C. v. Safeco Natl. Ins. Co., 32 Misc.3d 126[A], 2011 N.Y. Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Zalot v. Zieba, 81 AD3d 935 2011 ). In any event, even considering plaintiff's new facts, plaintiff failed to come forward with sufficient evidence to defeat defendant's motion for summary judgment dismissing the complaint. Thus, the Civil Court properly adhered to its prior decision granting defendant's motion, as the affidavits of defendant's litigation manager and AIIC's claims litigation manager were sufficient to establish defendant's lack of coverage defense (see Great Health Care Chiropractic, P.C. v. Omni Indem. Co., 40 Misc.3d 139[A], 2013 N.Y. Slip Op 51450[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v. State Farm Mut. Auto. Ins. Co., 31 Misc.3d 138[A], 2011 N.Y. Slip Op 50743[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and SOLOMON, JJ., concur.