September 4, 2007

Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51981(U))

https://www.beynensonlaw.com/case-law/dan-med-p-c-v-new-york-cent-mut-ins-co-2007-ny-slip-op51981u/

Court: Appellate Term, Second Department
Decided: September 4, 2007
Citation: 2007 NY Slip Op 51981(U) · 17 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130(A), 2007 NY Slip Op 51981(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 accident-reconstruction affidavit was inadmissible because it did not comply with CPLR 2309 (c). The provider preserved its objection, and the insurer consequently failed to submit competent evidence of a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the judgment awarding the provider summary judgment on five claims. The insurer's constitutional challenge was unreviewable because it had not notified the Attorney General as required by Executive Law § 71 and CPLR 1012. Under CPLR 5501 (a) (1), the remaining claim was outside the appeal's scope; the provider had not appealed denial of summary judgment on that claim. The court did not review the unchallenged prima facie showing.

Reported in New York Official Reports at Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51981(U))

[*1]

Dan Med., P.C. v New York Cent. Mut. Ins. Co.

2007 NY Slip Op 51981(U) [17 Misc 3d 130(A)]

Decided on September 4, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1173 Q C.

Dan Medical, P.C. a/a/o REGINALD BEAUBRUN, Respondent,
against
New York Central Mutual Insurance Co., Appellant.

Appeal, as limited by the brief, from so much of an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered April 14, 2006, as granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment, deemed an appeal from a judgment entered May 30, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 14, 2006 order, awarded plaintiff the principal sum of $1,146.80.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment upon the six claims it submitted to defendant was granted to the extent of awarding plaintiff summary judgment upon five of the claims which totaled $1,146.80. After defendant filed its notice of appeal, a judgment was entered upon these five claims. Pursuant to CPLR 5501 (c), we deem defendant’s appeal to be from the judgment.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s [*2]assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since the affidavit proffered by defendant did not comply with CPLR 2309 (c), which fact was duly objected to by plaintiff in the court below, the affidavit was not in admissible form (see CPLR 2309 [c]; Bath Med. Supply, Inc. v Allstate Indem. Co., 13 Misc 3d 142[A], 2006 NY Slip Op 52273[U] [App Term, 2d & 11th Jud Dists]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Consequently, defendant failed to introduce competent evidence establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]).

Defendant’s constitutional challenge to CPLR 2309 (c) is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301 AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

To the extent plaintiff requests that we search the record and award it summary judgment upon its remaining claim for $473.20, plaintiff’s entitlement to summary judgment upon this claim is not before us since said claim is not brought up for review on defendant’s appeal from the judgment, and plaintiff did not appeal from so much of
the order as denied its motion for summary judgment upon such claim (see CPLR 5501 [a] [1]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

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

Held the accident reconstructionist's out-of-state affidavit, lacking CPLR 2309(c) compliance over the provider's objection, was inadmissible, so the insurer introduced no competent evidence of a founded belief and the provider's judgment was affirmed.

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

Bath Med. Supply, Inc. v Allstate Indem. Co. (2006 NY Slip Op 52273(U)) FollowedThe insurer's mailing affidavit was inadmissible under CPLR 2309 (c), precluding its medical-necessity defense for lack of timely denial proof.
Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52250(U)) FollowedThe insurer's causation report was inadmissible, and curing it for the first time in sur-reply did not defeat the provider's summary judgment motion.
A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U)) Contrasted (cf., but see)The insurer's low-impact study and supporting affidavit raised a triable issue whether the claimed injuries arose from the accident.
Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51051(U)) Contrasted (cf., but see)The insurer's low-impact study raised a factual issue whether the claimed injuries arose from the insured accident.

Cited by

A label shows how the later decision treated this one.

Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50498(U)) FollowedThe insurer's Maryland affidavit lacked a certificate of conformity, and the provider preserved its admissibility objection.
Crossbridge Diagnostic Radiology v Encompass Ins. (2009 NY Slip Op 51415(U)) FollowedThe insurer failed to prove exhausted coverage because its out-of-state affidavit did not comply with CPLR 2309 (c).

Similar decisions

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.
NYC East-West Acupuncture, P.c. v Maryland Cas. Co. (2008 NY Slip Op 51762(U))The insurer's unrebutted IME evidence established lack of medical necessity, while the provider failed to authenticate its claim records.
Bedford Park Med. Practice, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50289(U))The provider's cross motion for summary judgment failed because its corporate officer did not lay a business-record foundation.
NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))The provider's summary judgment cross motion failed because conflicting medical affirmations raised a triable issue of medical necessity.
A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.