December 15, 2009

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))

https://www.beynensonlaw.com/case-law/andromeda-med-care-p-c-v-ny-cent-mut-fire-ins-co-2009-ny-slip-op52601u/

Court: Appellate Term, Second Department
Decided: December 15, 2009
Citation: 2009 NY Slip Op 52601(U) · 26 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126(A), 2009 NY Slip Op 52601(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the provider's complaint. The Civil Court had found a factual issue as to whether the alleged accident occurred. On appeal, the insurer's prima facie showing was the sole issue. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insured's statement that no pedestrians had been struck was sufficient to shift the burden to the provider. The provider failed to raise a triable issue in opposition.

Reported in New York Official Reports at Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))

[*1]

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.

2009 NY Slip Op 52601(U) [26 Misc 3d 126(A)]

Decided on December 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : GOLIA, J.P., PESCE and WESTON, JJ
2008-2014 K C.

Andromeda Medical Care, P.C. a/a/o JOHN SOUTHERN, Respondent,
against
NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered June 12, 2008. The order denied defendant’s motion for summary judgment.

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, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that there was a triable issue of fact as to whether the alleged accident had occurred. The sole issue raised on appeal is whether defendant made a prima facie showing that plaintiff’s assignor’s injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), such that the burden shifted to plaintiff to raise a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In support of its motion, defendant annexed the affidavit of its insured, who averred that she had not hit any pedestrians. This affidavit was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Since plaintiff failed to raise a triable issue of fact in opposition to the motion, defendant’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009

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 insured's affidavit that she had not hit any pedestrian showed the injuries did not arise from an insured incident, and the provider raised no triable issue.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited by

A label shows how the later decision treated this one.

New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co. (2012 NY Slip Op 52388(U)) FollowedThe insurer established that the assignor's injuries did not arise from an insured incident, and the provider's records raised no triable issue.
Alleviation Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51630(U)) FollowedThe provider's appellate arguments against dismissal for lack of a covered loss were raised for the first time on appeal.
Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U)) FollowedThe insured's EUO testimony established prima facie that the alleged injury did not arise from an insured incident.
Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51061(U))The insured's EUO testimony and affidavit established that the alleged injury did not arise from an insured incident.
Parisien v Allstate Ins. Co. (2019 NY Slip Op 51249(U))The insurer established that the alleged injury did not arise from an insured incident through its insured's EUO testimony and affidavit.

Similar decisions

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2012 NY Slip Op 50344(U))The insurer's biomechanical evidence established no causal connection between the accident and the assignors' claimed injuries.
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. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))The insurer's evidence established a founded belief that the assignors' injuries did not arise from 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.
A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U))The insurer's low-impact study and supporting affidavit raised a triable issue whether the claimed injuries arose from the accident.