June 1, 2007

Capri Med., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 51158(U))

Headnote

The court considered the fact that the plaintiff, Capri Medical, P.C., was seeking to recover assigned first-party no-fault benefits, and that their motion for summary judgment was supported by an "affidavit" from a corporate officer of the plaintiff, as well as various documents. The main issue decided was whether the "affidavit" in support of the plaintiff's motion for summary judgment suffered from multiple defects such as to render it insufficient to establish the plaintiff's entitlement to judgment as a matter of law. The holding of the court was that the plaintiff's motion for summary judgment was properly denied due to the defects in the "affidavit." Additionally, the court found that the defendant's cross motion for summary judgment, based on the allegations that the plaintiff's assignor was injured in a staged accident, should also have been denied as the defendant did not prove, as a matter of law, that the alleged injuries did not arise out of an insured incident.

Reported in New York Official Reports at Capri Med., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 51158(U))

Capri Med., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 51158(U)) [*1]

Capri Med., P.C. v Progressive Cas. Ins. Co.

2007 NY Slip Op 51158(U) [15 Misc 3d 143(A)]

Decided on June 1, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS AND BELEN, JJ
2006-648 Q C.

Capri Medical, P.C. a/a/o Edouard Kourtchakox, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar G. Walker, J.), entered on March 22, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an “affidavit” by a corporate officer of plaintiff, and various documents annexed thereto. We agree with the court’s
conclusion that the “affidavit” suffered from multiple defects, such that it cannot be determined that the affidavit was properly sworn to, thereby rendering it insufficient to establish plaintiff’s entitlement to judgment as a matter of law. Consequently, plaintiff’s motion for summary judgment was properly denied.

Defendant’s cross motion for summary judgment was premised upon the allegation that plaintiff’s assignor was injured, if at all, in a staged accident. However, defendant did not prove, as a matter of law, 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]; Zuckerman v City of New [*2]York, 49 NY2d 557 [1980]). As a result, defendant’s cross motion seeking summary judgment should have been denied.

Golia, J.P., Rios and Belen, JJ., concur.