A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2007 NY Slip Op 52300(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, Queens County (Kevin Kerrigan, J.), entered December 28, 2005, deemed an appeal from a judgment entered April 6, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 28, 2005 order granting plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on five of its six claims and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $6,874.37.

Judgment reversed without costs, so much of the order entered December 28, 2005 as granted plaintiff summary judgment on five of its six claims vacated, plaintiff’s motion for summary judgment denied in its entirety and matter remanded to the court below for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted as to five of its six claims. The sole issue 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 affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment. [*2]
Pesce, P.J., and Belen, J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J. dissents and votes to affirm the judgment.
Defendant does not contest the sufficiency of plaintiff’s prima facie case. As a result, absent a timely and valid denial, defendant is precluded from raising most defenses to a cause of action for payment of the claim (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Notwithstanding the general rule, an insurer can defeat a plaintiff’s right to summary judgment if it can show the existence of a triable issue of fact as to whether the purported injuries are not related to an accident, by demonstrating that it possessed a “founded belief” that the alleged injuries are not causally related to an automobile accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Such a founded belief must be demonstrated by objective facts from which the insurer’s conclusion can be drawn. In Mount Sinai Hosp. v Triboro Coach (263 AD2d 11, 19 [1999]), the Appellate Division explained that “the defendant has the burden to come forward with proof in admissible form to establish the fact’ or the evidentiary foundation for its belief’ that the patient’s treated condition was unrelated to his or her automobile accident. . . .” Defendant’s submission in the instant case merely consists of the affidavit of its investigator who in conclusory terms maintained “the loss was not caused by (an) accident.” Despite referring to conversations with the policyholder and the driver of the insured vehicle, defendant’s submissions lack copies of their purported statements. Moreover, no explanation is presented for defendant’s failure to submit documentation in admissible form of its otherwise hearsay and speculative assertions. Thus, defendant failed to satisfy its burden of demonstrating the existence of a triable issue of fact (id.).
Accordingly, summary judgment in favor of the plaintiff was properly granted (see A.B. Med. Servs. PLLC v Encompass Ins., 10 Misc 3d 127[A], 2005 NY Slip Op 51892 [App Term, 2d & 11th Jud Dists 2005]).
Decision Date: November 29, 2007