March 19, 2009

Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))

Headnote

The court considered the fact that plaintiff moved for summary judgment in an action to recover first-party no-fault benefits, and defendant opposed the motion arguing the incident was a staged loss. The main issue was whether plaintiff proved its entitlement to summary judgment, and also whether defendant had a founded belief that the alleged injuries did not arise out of an insured incident. The court held that plaintiff did establish its entitlement to summary judgment by proving submission of statutory claim forms and that payment of benefits was overdue. However, the court also found that the defendant's submissions were sufficient to demonstrate a founded belief that the injuries did not arise out of an insured incident. Therefore, the order denying plaintiff's motion for summary judgment was affirmed, though on different grounds.

Reported in New York Official Reports at Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))

Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U)) [*1]

Amaze Med. Supply, Inc. v Utica Mut. Ins. Co.

2009 NY Slip Op 52690(U) [26 Misc 3d 129(A)]

Decided on March 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
2008-1155 N C.

Amaze Medical Supply, Inc. a/a/o ANA TENORIO and XAVIER CARRASCO, Appellant,
against
Utica Mutual Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered April 14, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, arguing that it had a founded belief that the subject incident was a staged loss. District Court denied plaintiff’s motion, finding that plaintiff failed to prove its prima facie entitlement to summary judgment because, inter alia, the supporting affidavit did not lay a proper foundation for the admissibility of plaintiff’s business records. The instant appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proving submission of statutory claim forms, 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]). We note that the affidavit submitted by plaintiff established 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

In opposition to plaintiff’s motion, defendant asserted that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). We find that defendant’s submissions were sufficient to demonstrate that defendant possessed a “founded belief that the [*2]alleged injur[ies] do[] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: March 19, 2009