December 15, 2009

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))

Headnote

The court considered an appeal from a denial of summary judgment by the Civil Court of the City of New York, Kings County, in a case involving a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The insurance company had filed a motion for summary judgment, arguing that the injuries of the provider's assignor did not arise out of an insured incident. The main issue was whether the insurance company had made a prima facie showing that the injuries did not arise out of an insured incident, shifting the burden to the provider to raise a triable issue of fact. The court held that the insurance company had made a sufficient showing through the affidavit of its insured, and since the provider failed to raise a triable issue of fact in opposition to the motion, the insurance company's motion for summary judgment was granted. In summary, the relevant facts considered by the court included the affidavit of the insurance company's insured stating that she had not hit any pedestrians, and the main issue decided was whether the insurance company had made a prima facie showing that the injuries did not arise out of an insured incident. The holding was that the insurance company had made a sufficient showing, and therefore its motion for summary judgment was granted.

Reported in New York Official Reports at Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U))

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52601(U)) [*1]

Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.

2009 NY Slip Op 52601(U) [26 Misc 3d 126(A)]

Decided on December 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., PESCE and WESTON, JJ
2008-2014 K C.

Andromeda Medical Care, P.C. a/a/o JOHN SOUTHERN, Respondent,
against
NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered June 12, 2008. The order denied defendant’s motion for summary judgment.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that there was a triable issue of fact as to whether the alleged accident had occurred. The sole issue raised on appeal is whether defendant made a prima facie showing that plaintiff’s assignor’s injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), such that the burden shifted to plaintiff to raise a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In support of its motion, defendant annexed the affidavit of its insured, who averred that she had not hit any pedestrians. This affidavit was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Since plaintiff failed to raise a triable issue of fact in opposition to the motion, defendant’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009