ACTIVE CARE MEDICAL SUPPLY CORP. v. HARTFORD INSURANCE COMPANY, CV–027848–14/KI
This case represents a lesson for all attorneys that when making motions, you must establish the facts with adequate proof, not simply an affidavit from an attorney.
In this case the insurer made a motion for summary judgment alleging lack of coverage, that it was not the proper carrier. The motion contained only the affidavit of its attorney. the Court stated that an attorney’s affidavit; is not evidence and does not serve to establish its assertions for summary judgment (Cullin v. Spiess, 122 AD3d 792, 793 [2d Dept 2014] ). The Court further stated: In its reply papers, defendant submits an affidavit from an employee who claimed to have reviewed the file and determined that defendant was not the proper insurer. However, the court cannot consider new facts submitted on reply (Rengifo v. City of New York, 7 AD3d 773, 773 [2d Dept 2004] ).
Of additional note in this decision, the Court stated as follows:
Furthermore, defendant fails to attach the insurance policy, rendering its employee’s statements as to the alleged contents of the policy hearsay (Nassau Ins. Co. v. Manzione, 112 A.D.2d 408, 409 [2d Dept 1985] [best evidence of policy language is the policy itself] ). Moreover, the police report defendant offers is uncertified, and is therefore inadmissible (Cheul Soo Kang v. Violante, 60 AD3d 991, 991 [2d Dept 2009] )
Compare the above dicta with the recent decision in BRAND MEDICAL SUPPLY, INC. v. INFINITY INS. CO., 2016 NY Slip Op 50739(U)