March 19, 2009
Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))
https://www.beynensonlaw.com/case-law/amaze-med-supply-inc-v-utica-mut-ins-co-2009-ny-slip-op52690u/
- Decided
- March 19, 2009
- Citation
- 2009 NY Slip Op 52690(U) · 26 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))
| Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. |
| 2009 NY Slip Op 52690(U) [26 Misc 3d 129(A)] |
| Decided on March 19, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2008-1155 N C.
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered April 14, 2008. The order denied plaintiff’s motion for summary judgment.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, arguing that it had a founded belief that the subject incident was a staged loss. District Court denied plaintiff’s motion, finding that plaintiff failed to prove its prima facie entitlement to summary judgment because, inter alia, the supporting affidavit did not lay a proper foundation for the admissibility of plaintiff’s business records. The instant appeal by plaintiff ensued.
Plaintiff established its prima facie entitlement to summary judgment by proving submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiff established that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
In opposition to plaintiff’s motion, defendant asserted that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). We find that defendant’s submissions were sufficient to demonstrate that defendant possessed a “founded belief that the [*2]alleged injur[ies] do[] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 19, 2009
Legal questions (2)
Questions 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 insurer's submissions showed a founded belief that the injuries did not arise from an insured incident in an alleged staged loss, defeating the provider's summary judgment motion.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held, contrary to the lower court, that the provider's affidavit laid a business-records foundation for the claim forms and established submission and overdue payment.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) FollowedAn insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NY Slip Op 50189(U))The insurer's conclusory submissions failed to raise a triable issue of staged-accident fraud.
Cited by
- Pavlova v Allstate Ins. Co. (2019 NY Slip Op 50016(U))The insurer's EUO nonappearance defense was precluded by a denial issued more than 30 days after the last scheduled EUO. The Civil Court, Kings County, denied summary judgment to the insurer and granted summary judgment to the provider.
- Sabodash v Hereford Ins. Co. (2021 NY Slip Op 51099(U))The insurer failed to establish its lack-of-coverage defense with admissible proof that it did not insure the assignor's vehicle.
Similar decisions
- 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.
- Amaze Med. Supply Inc. v AIU Ins. Co. (2004 NY Slip Op 51629(U))The insurer's investigator affidavit raised a factual coverage issue despite an untimely denial of the medical-supply claim.
- Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51051(U))The insurer's low-impact study raised a factual issue whether the claimed injuries arose from the insured accident.
- Amaze Med. Supply, Inc. v Travelers Prop. Cas. (2009 NY Slip Op 51357(U))The provider's summary judgment motion was denied because its biller's affidavit did not establish the admissibility of the annexed documents.
- A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U))The insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal.