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July 8, 2008

Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. (2008 NY Slip Op 51448(U))

https://www.beynensonlaw.com/case-law/freeport-med-p-c-v-utica-natl-ins-co-of-tex-2008-ny-slip-op51448u/

Court
Appellate Term, Second Department
Decided
July 8, 2008
Citation
2008 NY Slip Op 51448(U) · 20 Misc 3d 132(A)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
Staged accidents, lack of coverage Provider's prima facie case Timeliness and preclusion
Legal questions
Claimant's prima facie case on motions · No covered accident (founded belief) (see the maps)
Cite as
Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex., 20 Misc 3d 132(A), 2008 NY Slip Op 51448(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2008)

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 investigator failed to establish a fact or founded belief that the assignor's injuries did not arise from an insured incident. The provider's biller supplied a sufficient business-record foundation, establishing its prima facie entitlement to summary judgment. Although the insurer missed the 30-day payment-or-denial period under 11 NYCRR 65-3.8 (c) and failed to establish timely verification tolling under 11 NYCRR 65-3.5 (a) and (b), its intentional-loss coverage defense was not precluded under Central Gen. Hosp. v Chubb Group of Ins. Cos. The investigator's affidavit nevertheless failed to support that defense. The Appellate Term, Second Department, affirmed the grant of the provider's motion and denial of the insurer's cross motion.

Reported in New York Official Reports at Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex. (2008 NY Slip Op 51448(U))

[*1]
Freeport Med., P.C. v Utica Natl. Ins. Co. of Tex.
2008 NY Slip Op 51448(U) [20 Misc 3d 132(A)]
Decided on July 8, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2007-817 N C.
Freeport Medical, P.C. a/a/o Emmanuel Antoine, Respondent,

against

Utica National Insurance Company of Texas, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Erica L. Prager, J.), entered March 12, 2007. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross 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 and defendant cross-moved for summary judgment on the ground that the assignor’s injuries did not arise out of an insured incident. The court below granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued.

Contrary to defendant’s contention, the affidavit submitted by plaintiff in support of its motion for summary judgment established that plaintiff’s biller possessed sufficient personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (cf. 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]). Accordingly, the court below properly determined that plaintiff made a prima facie showing of its entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Although defendant admittedly failed to pay or deny plaintiff’s claims within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]), and failed to establish that said period was extended by a timely request for verification (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), it was not precluded from raising its defense of lack of coverage based upon its conclusion that the underlying loss was the result of an intentional act (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). However, the affidavit of defendant’s investigator, submitted in opposition to plaintiff’s motion and in support of defendant’s cross motion for summary judgment, was insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, the court below properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.

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.

Claimant's prima facie case on motions

Open the full map

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

Held the biller's affidavit showed sufficient personal knowledge of the provider's practices to lay a business-records foundation, so the provider made its prima facie showing.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itDistinguished or limited

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

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 proof did not raise an issue or failed at trial; provider prevails on it

Held the insurer's investigator affidavit insufficient to show a founded belief that the loss resulted from an intentional act, so summary judgment for the provider was affirmed and the insurer's cross motion denied.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 16
  • Appellate TermApp Term 171
  • Trial courtsTrial 46
2011, Court of Appeals: 1 decision (1 Defense not shown)2023, Appellate Division: 1 decision (1 Defense established)2022, Appellate Division: 1 decision (1 Defense established)2016, Appellate Division: 1 decision (1 Insurer's motion fails)2015, Appellate Division: 1 decision (1 Insurer's motion fails)2009, Appellate Division: 1 decision (1 Defense not shown)2008, Appellate Division: 1 decision (1 Defense not shown)2007, Appellate Division: 3 decisions (2 Triable issue, 1 Defense not shown)2006, Appellate Division: 1 decision (1 Insurer's motion fails)2005, Appellate Division: 2 decisions (2 Defense not shown)2004, Appellate Division: 3 decisions (3 Defense not shown)2026, Appellate Division: 1 decision (1 Defense not shown)2021, Appellate Term: 1 decision (1 Insurer's motion fails)2019, Appellate Term: 4 decisions (2 Defense established, 1 Triable issue, 1 Insurer's motion fails)2018, Appellate Term: 5 decisions (4 Defense established, 1 Triable issue)2017, Appellate Term: 8 decisions (2 Defense established, 2 Triable issue, 3 Insurer's motion fails, 1 Defense not shown)2016, Appellate Term: 1 decision (1 Insurer's motion fails)2015, Appellate Term: 2 decisions (2 Defense established)2014, Appellate Term: 1 decision (1 Defense established)2012, Appellate Term: 3 decisions (2 Defense established, 1 Defense not shown)2011, Appellate Term: 4 decisions (2 Triable issue, 2 Insurer's motion fails)2010, Appellate Term: 2 decisions (1 Defense established, 1 Triable issue)2009, Appellate Term: 13 decisions (5 Defense established, 5 Triable issue, 3 Defense not shown)2008, Appellate Term: 9 decisions (3 Triable issue, 6 Defense not shown)2007, Appellate Term: 23 decisions (13 Triable issue, 2 Insurer's motion fails, 8 Defense not shown)2006, Appellate Term: 30 decisions (21 Triable issue, 9 Defense not shown)2005, Appellate Term: 37 decisions (1 Defense established, 24 Triable issue, 12 Defense not shown)2004, Appellate Term: 22 decisions (16 Triable issue, 6 Defense not shown)2003, Appellate Term: 1 decision (1 Defense not shown)2024, Appellate Term: 1 decision (1 Insurer's motion fails)2025, Appellate Term: 2 decisions (1 Defense established, 1 Insurer's motion fails)2013, Appellate Term: 1 decision (1 Defense established)2023, Appellate Term: 1 decision (1 Triable issue)2023, Trial courts: 2 decisions (2 Insurer's motion fails)2020, Trial courts: 1 decision (1 Insurer's motion fails)2019, Trial courts: 3 decisions (1 Defense established, 1 Triable issue, 1 Defense not shown)2016, Trial courts: 1 decision (1 Insurer's motion fails)2013, Trial courts: 1 decision (1 Triable issue)2011, Trial courts: 2 decisions (2 Defense not shown)2010, Trial courts: 2 decisions (1 Triable issue, 1 Defense not shown)2008, Trial courts: 5 decisions (1 Defense established, 2 Triable issue, 2 Defense not shown)2007, Trial courts: 3 decisions (1 Defense established, 2 Triable issue)2006, Trial courts: 7 decisions (2 Defense established, 5 Defense not shown)2005, Trial courts: 7 decisions (1 Defense established, 6 Defense not shown)2004, Trial courts: 5 decisions (5 Defense not shown)2026, Trial courts: 6 decisions (2 Defense established, 3 Triable issue, 1 Insurer's motion fails)2014, Trial courts: 1 decision (1 Defense not shown)This decision
20052010201520202025
Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itDistinguished or limited

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.

Cited in this decision

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

  • Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) Contrasted (cf., but see)An 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) Contrasted (cf., but see)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

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.
  • 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.
  • Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))The insurer's submissions supported a founded belief that the alleged injuries did not arise out of 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.
  • AT Med. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50739(U))An untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme.
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