May 22, 2009
A.B. Chiropractic, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51022(U))
https://www.beynensonlaw.com/case-law/a-b-chiropractic-p-c-v-utica-mut-ins-co-2009-ny-slip-op-51022u/
- Decided
- May 22, 2009
- Citation
- 2009 NY Slip Op 51022(U) · 23 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- No covered accident (founded belief) (see the maps)
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 A.B. Chiropractic, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51022(U))
| A.B. Chiropractic, P.C. v Utica Mut. Ins. Co. |
| 2009 NY Slip Op 51022(U) [23 Misc 3d 141(A)] |
| Decided on May 22, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2007-2019 Q C.
against
Utica Mutual Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 24, 2007, deemed from a judgment of the same court entered December 9, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 24, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,218.13.
Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. In opposition to the motion, defendant argued, inter alia, that it
possessed a founded belief that the injuries allegedly sustained by plaintiff’s assignor did not
arise out of an insured incident. The Civil Court granted
plaintiff’s motion. The instant appeal by defendant ensued. A judgment was subsequently
entered (see CPLR 5501 [c]).
The sole issued raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the documents submitted in opposition to plaintiff’s motion, including the affirmation of defendant’s attorney, the copies of [*2]transcripts of witness statements and testimony, as well as the affidavits of defendant’s no-fault specialist and investigator, were sufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
Golia and Steinhardt, JJ., concur.
Weston, J.P., dissents in a separate memorandum.
Weston, J.P., dissents and votes to affirm the judgment in the following memorandum.
I find that the documents submitted in opposition to plaintiff’s motion were insufficient to
demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded
belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp.
v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, the judgment should be
affirmed.
Decision Date: May 22, 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.
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 attorney affirmation, witness statement and testimony transcripts, and affidavits of its no-fault specialist and investigator sufficient to show a founded belief that the injuries did not arise from an insured incident, defeating summary judgment.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
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.
- 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.
- 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.
- 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.