Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 51898(U))

Reported in New York Official Reports at Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 51898(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered June 21, 2004. The order denied plaintiff’s motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established its prima facie entitlement to summary judgment by proof that it 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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.

In opposition to plaintiff’s motion, defendant asserted that the plaintiff’s assignor’s injuries were not caused by the subject accident and provided documentation in support of said assertion. Upon a review of the record, we find that defendant sufficiently established that its denial 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]). Accordingly, the court below properly denied plaintiff’s motion for summary judgment. [*2]
Decision Date: November 21, 2005