February 24, 2009

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))

Headnote

The main issue in this case was whether the defendant had raised triable issues of fact in opposition to the plaintiff's motion for summary judgment to recover assigned first-party no-fault benefits. The court considered the submission of a statutory claim form and the payment of no-fault benefits to be overdue as evidence of the plaintiff's entitlement to summary judgment. However, the defendant opposed the motion on the grounds of lack of coverage, failure by plaintiffs' assignors to appear for independent medical examinations, and lack of medical necessity. In support of their defense, the defendant submitted various evidence including the affidavit of its litigation examiner, the police report, the affidavit of its investigator, and transcripts of statements made by the assignors and the insured. The court ultimately affirmed the denial of the plaintiff's motion for summary judgment, albeit on other grounds. Holding: The denial of the plaintiff's motion for summary judgment was affirmed due to the triable issues of fact raised by the defendant.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U))

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50331(U)) [*1]

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co.

2009 NY Slip Op 50331(U) [22 Misc 3d 137(A)]

Decided on February 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2008-354 N C.

A.B. Medical Services, PLLC, LVOV ACUPUNCTURE, P.C. and RW HEALTH PLUS CHIROPRACTIC, P.C. a/a/o DAVID NIGHTENGALE and EUIN JOYCE, Appellants,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Edmund M. Dane, J.), entered December 12, 2007. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion on the grounds
of lack of coverage, failure by plaintiffs’ assignors to appear for independent medical examinations and lack of medical necessity. The court below denied plaintiffs’ motion for summary judgment, finding that although plaintiffs established their prima facie entitlement to summary judgment, defendant raised triable issues of fact. The instant appeal by plaintiffs ensued.

A provider generally establishes its prima facie entitlement to summary judgment by [*2]proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss 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]). A review of the record indicates that the affidavit submitted by plaintiffs’ billing manager sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]). Consequently, the record establishes plaintiffs’ prima facie entitlement to summary judgment.

In opposition to plaintiff’s motion for summary judgment, defendant asserted, inter alia, that the alleged injuries do not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). In support of said defense, defendant submitted the affidavit of its litigation examiner, the police report, the affidavit of its investigator, and transcripts of statements made by the assignors and the insured, which demonstrated that defendant possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. at 199).

Accordingly, the denial of plaintiffs’ motion for summary judgment is affirmed, albeit on other grounds. In light of the foregoing, we reach no other issue.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: February 24, 2009