December 19, 2017

Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))

https://www.beynensonlaw.com/case-law/tyorkin-v-country-wide-ins-co-2017-ny-slip-op-51827u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51827(U) · 58 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Split result
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Tyorkin v Country Wide Ins. Co., 58 Misc 3d 137(A), 2017 NY Slip Op 51827(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's evidence raised a factual issue about whether the assignor's injuries arose from an insured incident but did not warrant dismissal. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer's evidence was insufficient to establish lack of an insured incident as a matter of law. The same evidence nevertheless raised a triable issue defeating the provider's motion. The Appellate Term, Second Department, modified the order to deny the provider summary judgment and affirmed denial of the insurer's cross motion, leaving both sides without summary judgment.

Reported in New York Official Reports at Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))

[*1]

Tyorkin v Country Wide Ins. Co.

2017 NY Slip Op 51827(U) [58 Misc 3d 137(A)]

Decided on December 19, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1204 Q C

Maxim Tyorkin, M.D., as Assignee of Ian Caby, Respondent,
against
Country Wide Insurance Company, Appellant.

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Ilona Finkelshteyn, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument on appeal, its evidence was insufficient to establish, as a matter of law, that plaintiff’s assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, plaintiff is not entitled to summary judgment, as defendant’s evidence was sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Founded belief shown; the question must be tried

Held the insurer's evidence did not establish as a matter of law that the injuries did not arise from an insured incident, but sufficed to raise a triable issue, so the provider's summary judgment was denied.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.

Similar decisions

Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U))The insurer established timely IME notices, the assignor's nonappearances, and timely denials based on failure to satisfy a coverage condition.
Tyorkin v GEICO Gen. Ins. Co. (2017 NY Slip Op 50364(U))The insurer's peer review established lack of causal relation, and the provider's doctor's affidavit failed to rebut its conclusions.
Tyorkin v Park Ins. Co. (2019 NY Slip Op 50682(U))The provider's summary judgment motion was denied on appeal for failure to establish an untimely or legally insufficient denial.
Tyorkin v Repwest Ins. Co. (2021 NY Slip Op 51208(U))The assignor's conclusory denial of receiving IME notices failed to rebut the presumption of receipt arising from proper mailing.
TAM Med. Supply Corp. v Country Wide Ins. Co. (2018 NY Slip Op 50578(U))The insurer failed to establish that the assignor was not an eligible injured person, leaving a factual issue that defeated both motions.