February 21, 2012

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2012 NY Slip Op 50344(U))

https://www.beynensonlaw.com/case-law/andromeda-med-care-p-c-v-utica-mut-ins-co-2012-ny-slip-op50344u/

Court: Appellate Term, Second Department
Decided: February 21, 2012
Citation: 2012 NY Slip Op 50344(U) · 34 Misc 3d 153(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc 3d 153(A), 2012 NY Slip Op 50344(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 biomechanical evidence established no causal connection between the accident and the assignors' claimed injuries. The engineer reviewed vehicle photographs, medical records and EUO transcripts, all attached to the motion, and concluded that the injuries could not have arisen from the accident. A certificate of conformity under Real Property Law § 299-a made the affidavit compliant with CPLR 2309 (c). The provider failed to rebut the admissible showing. The Appellate Term, Second Department, reversed and granted the insurer's motion for summary judgment dismissing the complaint; a dissent found only a founded belief that the injuries were unrelated and would have affirmed denial of the motion.

Reported in New York Official Reports at Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2012 NY Slip Op 50344(U))

[*1]

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co.

2012 NY Slip Op 50344(U) [34 Misc 3d 153(A)]

Decided on February 21, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
. ———————————— 1;———————————— 151;———————————— ————————-x

Andromeda Medical Care, P.C. as Assignee of ANTOINETTE WALKER and MARY YOU, Respondent, —
against
Utica Mutual Ins. Co., Appellant. ———————————— 1;———————————— 151;———————————— ————————-x

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 18, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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

In support of its motion, defendant submitted an affidavit by its biomechanical engineer, which affidavit was in admissible form, as it was accompanied by a certificate of conformity pursuant to Real Property Law § 299-a, and was therefore in compliance with CPLR 2309 (c) (cf. Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The engineer concluded that the injuries of plaintiff’s assignors could not have arisen out of the accident in question, after he reviewed, among other things, the photographs of the vehicle involved in the accident, the medical records of plaintiff and other providers regarding their treatment of the assignors, and copies of the transcripts of plaintiff’s assignors’ testimony at their examinations under oath, all of which defendant attached to its moving papers.

As defendant established its entitlement to judgment as a matter of law by submitting proof in admissible form showing the lack of a causal connection between the accident and the injuries claimed by plaintiff’s assignors, the burden shifted to plaintiff to rebut defendant’s showing. Plaintiff, in its opposition papers, failed to do so. Defendant’s motion for summary judgment dismissing the complaint should therefore have been granted.

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

Golia, J.P., and Weston, J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order in the following memorandum:

I respectfully dissent and vote to affirm the order.

Contrary to the finding of the majority, the affidavit of defendant’s biomechanical engineer was insufficient to establish as a matter of law that the injuries claimed by plaintiff’s assignors could not have arisen from the accident. Instead, the affidavit merely demonstrated a “founded belief” that the alleged injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly denied.
Decision Date: February 21, 2012

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 proved the injuries did not arise from a covered accident

Granted the insurer summary judgment because its biomechanical engineer's affidavit, in admissible form, showed the assignors' injuries could not have arisen from the accident, and the provider offered no rebuttal.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decision

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 32 (this one included) are in the same category.

Cited in this decision

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

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U)) Contrasted (cf., but see)The insurer's out-of-state affidavits were inadmissible because their certificates of conformity were defective and the provider objected.

Similar decisions

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))The insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident.
A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.
Advanced Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51023(U))The insurer supported a founded belief that the injuries did not arise from an insured incident despite failing to prove timely denials.
Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))The insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.
A.B. Chiropractic, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51022(U))The insurer raised a factual issue by supporting a founded belief that the assignor's alleged injuries did not arise from an insured incident.