November 2, 2018

Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co. (2018 NY Slip Op 51554(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-zurich-am-ins-co-2018-ny-slip-op51554u/

Court: Appellate Term, Second Department
Decided: November 2, 2018
Citation: 2018 NY Slip Op 51554(U) · 61 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Policy issues

Cite as

Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co., 61 Misc 3d 136(A), 2018 NY Slip Op 51554(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's cross motion for summary judgment was upheld because its proof established that it had issued no policy covering the loss. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the assigned no-fault claims. The decision rejected the provider's challenge to the sufficiency of the insurer's proof without describing that proof.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co. (2018 NY Slip Op 51554(U))

[*1]

Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co.

2018 NY Slip Op 51554(U) [61 Misc 3d 136(A)]

Decided on November 2, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-486 Q C

Charles Deng Acupuncture, P.C., as Assignee of Balde, Binta, Appellant,
against
Zurich American Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Miranda, Sambursky, Slone, Sklarin & Verveniotis, LLP (Neil L. Sambursky of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered January 11, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not issued an insurance policy covering the loss in question.

Contrary to plaintiff’s argument as to defendant’s cross motion, the proof submitted by defendant was sufficient to demonstrate that it had not issued a policy covering the loss in question (see e.g. New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 02, 2018

Cited in this decision

New Way Med. Supply Corp. v Dollar Rent A Car (2015 NY Slip Op 51794(U))The self-insurer's claims examiner affidavit established its lack-of-coverage defense without detailing each records-search step.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.

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Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))The insurer's summary judgment dismissal was affirmed because the provider's challenges lacked merit or were first raised on appeal.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))The insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident.
Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51451(U))The insurer's affidavits failed to establish timely mailing, and the provider's affidavit failed to establish its prima facie case.
Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 51834(U))The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider.
Charles Deng Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50580(U))The provider's arguments against the insurer's summary judgment motion were unpreserved because they were raised for the first time on appeal.