November 1, 2017
Easy Care Acupuncture, PC v Hartford Ins. Co. (2017 NY Slip Op 51470(U))
https://www.beynensonlaw.com/case-law/easy-care-acupuncture-pc-v-hartford-ins-co-2017-ny-slip-op51470u/
- Decided
- November 1, 2017
- Citation
- 2017 NY Slip Op 51470(U) · 57 Misc 3d 147(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- No covered accident (founded belief) (see the maps)
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.
Reported in New York Official Reports at Easy Care Acupuncture, PC v Hartford Ins. Co. (2017 NY Slip Op 51470(U))
| Easy Care Acupuncture, PC v Hartford Ins. Co. |
| 2017 NY Slip Op 51470(U) [57 Misc 3d 147(A)] |
| Decided on November 1, 2017 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2017
PRESENT: Schoenfeld, J.P., Ling-Cohan, Gonzalez, JJ.
570216/17
against
The Hartford Ins. Co., Defendant-Respondent.
Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated July 9, 2014, as granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for summary judgment.
Per Curiam.
Order (Gerald Lebovits, J.), dated July 9, 2014, modified to the extent of denying defendant’s motion for summary judgment and reinstating the complaint; as modified, order affirmed, with $10 costs.
This first party, no-fault action is not susceptible to summary disposition. The evidentiary proof submitted by defendant-insurer in support of its motion for summary judgment, while sufficient to demonstrate that defendant had a “founded belief” that the assignor’s injuries were sustained, if at all, in a staged accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), was insufficient to demonstrate as a matter of law that the injuries did not arise out of an insured incident so as to warrant summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th and 10th Jud Dists 2009]; Capri Med., P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51158[U] [App Term, 2nd and 11th Jud Dists 2007]). In particular, the affidavit of defendant’s investigator, who relied upon certain inconsistencies among the statements of the vehicle’s three occupants regarding events of the day of the collision, rather than the events of the collision itself, and other “red flags” common in staged accident cases, raises issues of fact that should be explored at trial (see Martinez v Pioneer Transp. Corp., 48 AD3d 306 [2008]; Oliverio v Lawrence Pub. Schools, 23 AD3d 633 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 01, 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.
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 investigator's affidavit, relying on inconsistencies in the occupants' accounts of the day and staged-accident red flags, showed a founded belief of a staged accident but raised only issues of fact for trial.
Of the 29 decisions on this question in the First Department courts and the Court of Appeals, 6 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U)) FollowedThe insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal.
- Capri Med., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 51158(U)) FollowedThe provider's defective affidavit and the insurer's insufficient staged-accident proof required denial of both summary judgment motions.
Similar decisions
- City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))The insurer established that the alleged injuries did not arise from an insured incident through the driver's certified EUO transcript.
- Crossbay Acupuncture, P.C. v Hartford Cas. Ins. Co. (2010 NY Slip Op 50487(U))The insured's affidavit established that the assignor's alleged injuries did not arise from an insured incident.
- Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
- Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))The insurer's summary judgment dismissal based on the assignor's failure to appear for scheduled EUOs was affirmed.
- Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))The insurer proved timely mailing of fee-schedule denials through office procedures and the provider's receipt of enclosed checks.