November 9, 2015

Alleviation Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51630(U))

https://www.beynensonlaw.com/case-law/alleviation-med-p-c-v-allstate-ins-co-2015-ny-slip-op-51630u/

Court: Appellate Term, Second Department
Decided: November 9, 2015
Citation: 2015 NY Slip Op 51630(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Alleviation Med., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51630(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 provider's appellate arguments against dismissal for lack of a covered loss were raised for the first time on appeal. The insurer cross-moved for summary judgment on the ground that the alleged injuries did not arise from a covered loss. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion, also finding the new arguments insufficient under Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.

Reported in New York Official Reports at Alleviation Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51630(U))

[*1]

Alleviation Med., P.C. v Allstate Ins. Co.

2015 NY Slip Op 51630(U)

Decided on November 9, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1003 Q C

Alleviation Medical, P.C. as Assignee of CLIFTON LYONS, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 17, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the alleged injuries did not arise out of a covered loss. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff’s arguments on appeal are being raised for the first time. In any event, they are insufficient to defeat defendant’s cross motion (see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 09, 2015

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.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer proved the injuries did not arise from a covered accident

Affirmed summary judgment for the insurer on the ground that the alleged injuries did not arise out of a covered loss, finding the provider's arguments, raised for the first time on appeal, insufficient to defeat it.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U)) FollowedThe insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident.

Similar decisions

Alleviation Med. Servs., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51628(U))The provider failed to establish an overdue claim or a timely denial that was conclusory, vague, or legally meritless.
Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))Conflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run.
Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
Alleviation Med. Servs., P.C. v Geico Ins. Co. (2015 NY Slip Op 50396(U))The provider's unopposed motion failed because its papers did not establish an overdue claim or a timely denial lacking legal merit.
Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))The insurer failed to establish timely and proper mailing of the IME scheduling letters, defeating summary judgment on its nonappearance defense.