March 31, 2017

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-21st-century-ins-co-2017-ny-slip-op50402u/

Court: Appellate Term, Second Department
Decided: March 31, 2017
Citation: 2017 NY Slip Op 50402(U) · 55 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Policy issues Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 55 Misc 3d 130(A), 2017 NY Slip Op 50402(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 failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident. Although the insurer timely denied the claims for fraudulent procurement, it offered no evidence that the assignor participated in or knew of the insured's alleged scheme. That omission defeated summary judgment on the policy-fraud defense. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., lack of coverage was not subject to preclusion, but the insurer's evidence also failed to establish that defense as a matter of law. The Appellate Term, Second Department, reversed the order granting summary judgment and denied the insurer's motion to dismiss the complaint.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))

[*1]

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co.

2017 NY Slip Op 50402(U) [55 Misc 3d 130(A)]

Decided on March 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1172 K C

Charles Deng Acupuncture, P.C., as Assignee of Turay, Santige, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC, Damin J. Toell, Esq., for appellant. Law Office of Bryan M. Rothenberg, Sharon A. Brennan, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 22, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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.

In support of its motion, defendant contended that the insured had fraudulently procured the insurance policy in question. Although defendant timely raised this defense in its denial of claim form, it presented no evidence that plaintiff’s assignor, a passenger in the insured’s vehicle at the time of the accident, had “participated in or was aware of” the insured’s alleged fraudulent scheme to obtain the insurance policy (Alexander Alperovich, M.D., P.C. v Auto One Ins. Co., 24 Misc 3d 141[A], 2009 NY Slip Op 51721[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see also Matter of Metlife Auto & Home v Agudelo, 8 AD3d 571, 572 [2004]). [*2]Consequently, defendant is not entitled to summary judgment on that ground.

To the extent that defendant also sought summary judgment on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), we find that defendant’s proffered evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Tam Med. Supply Corp. v 21st Century Ins. Co., 51 Misc 3d 131[A], 2016 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; 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]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Solomon, J.P., Pesce and Elliot, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 31, 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: Insurer's motion denied: proof did not establish the defense prima facie; defense still open (rules on the question, but another ground decided the case)

Held the insurer's evidence insufficient to establish as a matter of law that the assignor's injuries did not arise from an insured incident, so summary judgment on its lack-of-coverage defense 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, 20 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Alexander Alperovich, M.D., P.C. v Auto One Ins. Co. (2009 NY Slip Op 51721(U)) FollowedThe insurer's identity-theft defense failed because it showed no assignor involvement or awareness and had not canceled the policy before the accident.
Tam Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 50402(U))The insurer failed to establish a timely denial preserving policy-procurement fraud or prove that the injuries arose outside an insured incident.
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

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51451(U))The insurer's affidavits failed to establish timely mailing, and the provider's affidavit failed to establish its prima facie case.
Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co. (2018 NY Slip Op 51554(U))The insurer's cross motion for summary judgment was upheld because its proof established that it had issued no policy covering the loss.
Charles Deng Acupuncture, P.C. v Travelers Ins. Co. (2020 NY Slip Op 51320(U))The insurer proved timely EUO notices and denials and the assignor's nonappearance, while the provider raised no triable issue.
Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 51834(U))The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider.
Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))The insurer's summary judgment dismissal was affirmed because the provider's challenges lacked merit or were first raised on appeal.