A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered February 25, 2005, deemed an appeal from a judgment of the same court, entered May 13, 2005. The judgment, entered upon the order of February 25, 2005 granting plaintiffs’ motion for summary judgment, awarded plaintiffs the principal sum of $3,947.06.

Judgment reversed without costs, order entered February 25, 2005 vacated, plaintiffs’ motion for summary judgment denied, and matter remanded to the court below for all further proceedings.

In this action to recover first-party no-fault benefits for health care services rendered to their assignor, plaintiffs providers established a prima facie entitlement to summary judgment by proof that they submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

A given basis for denial of all the claims was that an investigation had revealed that the injuries alleged were not related to the subject motor vehicle accident. In opposition to plaintiffs’ motion, defendant submitted, inter alia, an accident analysis report (referred to as a “low impact study”) accompanied by an affidavit of the technical consultant/accident [*2]reconstructionist who prepared the report. Contrary to the finding of the court below, a low impact study may constitute a proper basis for a denial (see Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]), provided it is in admissible form (cf. Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). In the instant case, defendant’s submissions were sufficient to demonstrate that its defense of lack of a nexus between the accident and the injuries claimed was based upon a “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]). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs’ motion for summary judgment should not have been granted, and the matter is accordingly remanded for further proceedings.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:

I agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: June 22, 2006