June 1, 2007
Capri Med., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 51158(U))
https://www.beynensonlaw.com/case-law/capri-med-p-c-v-progressive-cas-ins-co-2007-ny-slip-op-51158u/
- Decided
- June 1, 2007
- Citation
- 2007 NY Slip Op 51158(U) · 15 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (see Cited by)
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.
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) [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| This opinion is uncorrected and will not be published in the printed Official Reports. |
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.
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.
Legal questions (2)
Questions 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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider's motion properly denied because its officer's affidavit had multiple defects such that it could not be determined to be properly sworn, so it did not establish entitlement to judgment.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's motion denied: proof did not establish the defense prima facie; defense still open
Held the insurer did not prove as a matter of law that the injuries arose, if at all, from a staged accident, so its cross motion for summary judgment should have been denied.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited by
A label shows how the later decision treated this one.
- Easy Care Acupuncture, PC v Hartford Ins. Co. (2017 NY Slip Op 51470(U)) FollowedThe insurer's proof supported a founded belief in a staged accident but did not establish entitlement to summary judgment.
Similar decisions
- Capri Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50536(U))The provider failed to prove submission of its claims because its officer's affidavit did not establish a business-records foundation.
- Capri Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50611(U))The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation.
- Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))The insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.
- A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52383(U))The insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal.
- Corona Med. Imaging, P.C. v State Farm Ins. Cos. (2005 NY Slip Op 51685(U))The insurer's investigator affidavit established a founded belief of a staged collision sufficient to defeat the provider's summary judgment.