Jones Jones has succeeded in obtaining Appellate precedent that establishes a minimal burden of proof for demonstrating lack of no-fault coverage for an allegedly injured bus passenger. In Jesa Medical Supply, Inc. a/a/o Margaret Heck v. NYCTA, our office cross-moved for summary judgment based on an affidavit of the claims examiner. Our motion was granted by the Civil Court, Kings County, and the plaintiff appealed. On Appeal, arguing inter alia that, unlike an insurance company that only knows whether or not a policy exists, and which must therefore question the allegedly insured driver and/or the allegedly injured party, an examiner’s affidavit based on their investigation should be sufficient, without the need to request further verification, as the self-insured operating authority has the ability to “ask itself” whether the alleged incident occurred. In a unanimous decision, the Appellate Term, Second Department ruled that the claims examiner’s affidavit was sufficient, without more, to establish a prima facie entitlement to summary judgment. Significantly, the Appellate Term refused to impose a burden for the claims handler to request further verification, where the only allegation contained in the NF-2 identifying the alleged incident at issue was the date of loss.
It has long been established that an insurer’s burden of proof on a lack of coverage defense may be met upon an insurer’s demonstration of a “founded belief that the alleged injuries do [ ] not arise out of an insured incident.” See Ocean Diagnostic Imaging P.C. v. AIU Ins. Co., 10 Misc. 3d 139(A) (App. Term 2d Dep’t, 2005) citing Central Gen. Hosp. v Chubb, 90 N.Y.2d 195 (1997). The previous standard in the Second Department, established by our office in the matter of Millennium Med. Instruments Inc. v NYC Tr. Auth., 10 Misc 3d 139(A) (App. Term, 2d Dept, 2005), held that an unrebutted affidavit by the relevant bus operator stating that the alleged accident did not occur and/or the claimant in question was not involved in such accident was sufficient to establish a prima facie entitlement to summary judgment. The decision in Jesa Medical Supply, Inc. a/a/o Margaret Heck v. NYCTA significantly reduces the burden to be met by a self-insured when moving for summary judgment based on lack of involvement in a covered accident. Although we always seek to put forward the best possible evidentiary support, in cases where such support proves difficult or time-consuming to obtain, the reduced burden of proof established by this decision will result in a reduction in the cost of defense.