June 9, 2005

Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50958(U))

Headnote

The court considered the fact that Careplus Medical Supply Inc. was seeking first-party no-fault benefits for medical supplies furnished to its assignor and had submitted claims for the loss sustained. Careplus established prima facie entitlement to summary judgment by providing proof of overdue payment of no-fault benefits. The main issue was whether the alleged injuries were causally related to the accident, which was asserted as a defense by Kemper Auto & Home Insurance Company. In opposition to the motion for summary judgment, Kemper Auto & Home Insurance Company presented an Accident Reconstruction Analysis report as admissible evidence by an expert in the field, which demonstrated a lack of causal nexus between the accident and the injuries claimed by Careplus' assignor. The court held that since Kemper demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage, Careplus' motion for summary judgment was properly denied.

Reported in New York Official Reports at Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50958(U))

Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50958(U)) [*1]

Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co.

2005 NYSlipOp 50958(U)

Decided on June 9, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and BELEN, JJ.
2004-1089 K C

Careplus Medical Supply Inc., a/a/o Andres Jimenez, Appellant,
against
Kemper Auto & Home Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Nadelson, J.), entered on June 18, 2004, which denied its 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 a prima facie entitlement to summary judgment by proof that it submitted claims, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The Accident Reconstruction Analysis report, which was sworn to by the consultant who prepared said report, constituted admissible evidence by an expert in the field in support of defendant’s defense of a lack of causal nexus between the accident and the injuries claimed by plaintiff’s assignor (see Valentine v Grossman, 283 AD2d 571 [2001]), and was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P. C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P. C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]). [*2]

Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: June 09, 2005