November 19, 2009

A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-clarendon-natl-ins-co-2009-ny-slip-op52383u/

Court
Appellate Term, Second Department
Decided
November 19, 2009
Citation
2009 NY Slip Op 52383(U) · 25 Misc 3d 139(A)
Posture
Summary judgment
Outcome
Split result
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
A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139(A), 2009 NY Slip Op 52383(U) (App Term, 2d Dept, 9th & 10th 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 insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal. The Appellate Term, Second Department, modified the amended order to deny the insurer's summary judgment cross motion while affirming denial of the provider's motion. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the record supported the insurer's founded belief that the assignor's alleged injuries did not arise from an insured incident. The insurer nevertheless failed to submit sufficient admissible evidence establishing lack of coverage as a matter of law. Neither party was entitled to summary judgment. The court did not review the provider's prima facie showing because the insurer had raised no issue concerning it below.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U))

[*1]
A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co.
2009 NY Slip Op 52383(U) [25 Misc 3d 139(A)]
Decided on November 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 19, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2008-2197 N C.
A.B. Medical Services, PLLC a/a/o MYKHAYLO MEVKALO, Appellant,

against

Clarendon National Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 7, 2008, deemed an appeal from an amended order of the same court entered October 29, 2008 (see CPLR 5520 [c]). The amended order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the amended order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the amended order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that there was a lack of coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise out of an insured incident. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that “[t]his has all the indicia of a staged accident.'” The instant appeal by plaintiff ensued.

Since defendant raised no issue in the District Court with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the District Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 2009

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