July 28, 2014

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-american-tr-ins-co-2014-ny-slip-op51240u/

Court: Appellate Term, Second Department
Decided: July 28, 2014
Citation: 2014 NY Slip Op 51240(U) · 44 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Policy issues

Cite as

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136(A), 2014 NY Slip Op 51240(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 examiner affidavit established that it had not issued a policy covering the accident. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss on the ground that it was not the carrier covering the accident. The affidavit sufficiently established that defense. Contrary to the provider's argument, the insurer did not have to describe in detail the steps taken to search its records to demonstrate that no coverage was in effect. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))

[*1]

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co.

2014 NY Slip Op 51240(U) [44 Misc 3d 136(A)]

Decided on July 28, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-2245 Q C

Delta Diagnostic Radiology, P.C. as Assignee of KAVEN CELESTIN, Appellant, July 28, 2014
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 13, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the accident in question. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion, defendant submitted an affidavit from its no-fault examiner which sufficiently established defendant’s lack of coverage defense (see Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Despite plaintiff’s contention to the contrary, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident (see Astoria Quality Med. Supply, 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U]; Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]). Consequently, defendant demonstrated that it was not the carrier which covered the accident in question (see also Vincent Med. Servs., P.C. v Omni Indem. Co., 42 Misc 3d 142[A], 2014 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2014]) and, thus, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 28, 2014

Cited in this decision

Great Health Care Chiropractic, P.C. v Omni Indem. Co. (2013 NY Slip Op 51450(U))The defendant insurer established that the provider sued the wrong carrier because another insurer issued the policy covering the accident.
Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50743(U))The insurer's affidavit describing a records search raised a triable issue as to whether it had issued the alleged policy.
Lenox Hill Radiology v Government Empls. Ins. Co. (2010 NY Slip Op 51638(U))The insurer established that a Louisiana pedestrian accident did not arise from an insured incident through admissible claims-log evidence.
Vincent Med. Servs., P.C. v Omni Indem. Co. (2014 NY Slip Op 50224(U))The insurer established that the provider had sued the wrong carrier because another insurer had issued the policy covering the accident.

Cited by

A label shows how the later decision treated this one.

New Way Med. Supply Corp. v Dollar Rent A Car (2015 NY Slip Op 51794(U)) FollowedThe self-insurer's claims examiner affidavit established its lack-of-coverage defense without detailing each records-search step.
Island Life Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51465(U)) FollowedThe insurer was granted summary judgment because its proof established that it had issued no policy covering the loss.
Nasrinpay v Travelers Ins. Co. (2022 NY Slip Op 50611(U)) FollowedThe insurer's summary judgment motion was granted on its lack-of-coverage defense, and the provider's cross motion was denied.
Pavlova v Country Wide Ins. Co. (2018 NY Slip Op 50843(U))The insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss.
New Millennium Med. Imaging, P.C. v Charter Oak Fire Ins. Co. (2019 NY Slip Op 51163(U))The insurer obtained summary judgment because its proof showed that it had issued no policy covering the loss.
Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co. (2025 NY Slip Op 51972(U))The insurer failed to establish lack of coverage with an affidavit addressing a different company's insurance records.
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.
Performance Plus Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51771(U))The insurer's cross motion for summary judgment was granted on its defense that it had issued no policy covering the loss.

Similar decisions

Delta Diagnostic Radiology, P.C. v American Tr. Inc. Co. (2015 NY Slip Op 51629(U))The insurer's cross motion for summary judgment on its EUO-nonappearance defense was granted, and the provider's motion was denied.
Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 52501(U))The insurer's follow-up verification requests mailed on the 30th calendar day after its initial requests were premature and ineffective.
Delta Diagnostics Radiology, P.C. v Delos Ins. Co. (2015 NY Slip Op 51135(U))An insurer's motion to compel a provider's deposition was denied without an investigator's supporting affidavit, within the trial court's discretion.
Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish its prima facie case.
Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))The assignor's alleged use of a fraudulent address raised a factual issue defeating the provider's summary judgment motion.