November 2, 2018

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

Headnote

The relevant facts considered by the court were that Charles Deng Acupuncture, P.C. was seeking to recover assigned first-party no-fault benefits from Zurich American Insurance Company. The main issue decided was whether Zurich American Insurance Company had issued an insurance policy covering the loss in question. The holding of the court was that the proof submitted by the defendant was sufficient to demonstrate that they had not issued a policy covering the loss in question. As a result, the court denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. The order was affirmed with costs.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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