January 5, 2017

City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))

https://www.beynensonlaw.com/case-law/city-care-acupuncture-p-c-v-hereford-ins-co-2017-ny-slip-op50037u/

Court: Appellate Term, Second Department
Decided: January 5, 2017
Citation: 2017 NY Slip Op 50037(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage Declaratory judgment, res judicata
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

City Care Acupuncture, P.C. v Hereford Ins. Co., 2017 NY Slip Op 50037(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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.

The insurer established that the alleged injuries did not arise from an insured incident through the driver's certified EUO transcript. The driver testified that the insured livery vehicle carried the assignors but was not involved in the reported accident. The unsigned transcript was admissible because it was certified. The providers' collateral estoppel argument failed because they did not establish that prior actions necessarily decided the identical coverage issue, that those determinations were decisive here, or that there was a full and fair opportunity to litigate coverage. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer established its defense, and the providers raised no triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.

Reported in New York Official Reports at City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))

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

City Care Acupuncture, P.C., Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C. and United Wellness Chiropractic, P.C., as Assignees of Lindsey Winslow and Johnique Jones, Appellants,
against
Hereford Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage for the accident which allegedly occurred on February 13, 2013. By order entered May 28, 2015, the Civil Court granted defendant’s motion.

In support of its summary judgment motion, defendant submitted, among other things, the transcript of the examination under oath of the driver of the insured vehicle. Contrary to plaintiffs’ contention, this transcript was properly considered by the Civil Court because, although it was not signed by the driver, it was certified (see Zalot v Zieba, 81 AD3d 935 [2011]; cf. Lifex Med. Care, P.C. v Safeco Natl. Ins. Co., 32 Misc 3d 126[A], 2011 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). During his examination under oath, the driver testified that he had rented the insured vehicle, which he drove as a livery vehicle, that the assignors had been passengers in his vehicle on February 13, 2013, and that the vehicle had not been involved in an accident on that date. Also, after the passengers in his vehicle called the police and reported that an accident had taken place, the driver told the responding police officer that there had been no accident.

Moreover, contrary to plaintiffs’ contention on appeal, the doctrine of collateral estoppel does not apply in the case at bar since plaintiffs failed to show that the identical coverage issue was necessarily decided in the prior actions to which plaintiffs referred, that such determinations are decisive of the present action, and that there was a full and fair opportunity to contest the issue of coverage in the prior actions (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665-666 [1990]). Plaintiffs’ remaining contentions lack merit.

In view of the foregoing, defendant established its prima facie entitlement to summary [*2]judgment dismissing the complaint by showing that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and plaintiffs failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: January 05, 2017

Legal questions

A question 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.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer proved the injuries did not arise from a covered accident

Held the insurer established that the injuries did not arise from an insured incident through the certified EUO of the insured vehicle's driver, who testified the vehicle was not in any accident, and the providers raised no triable issue.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decision

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 32 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Lifex Med. Care, P.C. v Safeco Natl. Ins. Co. (2011 NY Slip Op 51221(U)) Contrasted (cf., but see)The provider failed to establish summary judgment entitlement, and the insurer's fraudulent-procurement defense lacked admissible proof.

Similar decisions

Jamaica Wellness Med., P.C. v Hereford Ins. Co. (2018 NY Slip Op 51586(U))The insured's EUO testimony established prima facie that the alleged injury did not arise from an insured incident.
LVOV Acupuncture, P.C. v Hereford Ins. Co. (2018 NY Slip Op 51589(U))The insurer's summary judgment based on the insured vehicle's noninvolvement in the alleged accident was affirmed.
City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 51839(U))The providers' own purported verification responses showed that requested material remained outstanding and their no-fault action was premature.
City Care Acupuncture, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51036(U))The assignor's appearance at an EUO did not defeat the insurer's motion because the parties mutually agreed to reschedule it.
City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))The insurer established timely, proper mailing of IME notices and the assignor's failure to appear.