Court Orders Sanctions Inquiry Against Attorneys Who Sued Wrong Insurer: Natural Therapy Acupuncture, P.C. v Omni Indem. Co.

• Author: Rogak, Lawrence N.
• Position: COURTSIDE

Plaintiff medical provider brought suit against Omni Indemnity. Omni was granted summary judgment after it proved that it did not issue a policy for the subject accident, but that a different insurer did. Plaintiff appealed. The Appellate Term affirmed the dismissal of the suit, and ordered both sides to submit affidavits on the subject of why plaintiff's attorney should not be sanctioned, as it had made the same arguments in numerous prior cases and this court had rejected those same arguments each time.--LNR

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered November 2, 2016. The order granted defendant's motion for summary judgment dismissing the complaint and ordered that counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against plaintiff's counsel pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) [section] 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk of this court and serving one copy of same on each other on or before January 31, 2019; and it is further.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the vehicle which was involved in the accident in question and that, therefore, plaintiff had sued the wrong party. The order also implicitly denied plaintiff's cross motion for summary judgment.

In support of its motion, defendant submitted affidavits by its litigation manager and by a manager of American Independent Insurance Company (AIIC), which affidavits sufficiently established defendant's lack of coverage defense (see Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY SlipOp 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Notably, the AIIC manager attested that her company had issued the policy covering the accident in question. Plaintiff failed to raise an issue of fact in response. As defendant demonstrated that plaintiff had...