December 1, 2022

Country-Wide Ins. Co. v Metro Pain Specialists P.C. (2022 NY Slip Op 06865)

https://www.beynensonlaw.com/case-law/country-wide-ins-co-v-metro-pain-specialists-p-c-2022-ny-slip-op06865/

Court
Appellate Division, First Department
Decided
December 1, 2022
Citation
2022 NY Slip Op 06865 · 211 AD3d 403
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Policy issues Priority, other coverage
Cite as
Country-Wide Ins. Co. v Metro Pain Specialists P.C., 211 AD3d 403 (1st Dept 2022)

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 proved policy exhaustion through admissible business records, and the providers' unpleaded payment-priority objection failed. The Appellate Division, First Department, affirmed summary judgment declaring no further duty to pay claims arising from the accident. The policy declaration page, payment ledger, and claim supervisor's affidavit established exhaustion. The supervisor's personal knowledge of the claim file and processing procedures supplied the business-record foundation under CPLR 4518 (a). The providers submitted no contrary evidence. The insurer did not have to establish compliance with 11 NYCRR 65-3.15 because the providers had not raised payment priority as an affirmative defense.

Reported in New York Official Reports at Country-Wide Ins. Co. v Metro Pain Specialists P.C. (2022 NY Slip Op 06865)

Country-Wide Ins. Co. v Metro Pain Specialists P.C.
2022 NY Slip Op 06865 [211 AD3d 403]
December 1, 2022
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 8, 2023

[*1]

 Country-Wide Insurance Company, Respondent,
v
Metro Pain Specialists Professional Corporation et al., Appellants, et al., Defendants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about September 24, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment and declared that it owes no further duty to defendants to pay any no-fault claims with respect to a specified motor vehicle accident involving defendant Maria Aguilar, unanimously affirmed, without costs.

Country-Wide satisfied its prima facie burden of showing that it exhausted the policy by submitting the policy declaration page, an affidavit by its no-fault claim supervisor responsible for Aguilar’s claim, and the payment ledger showing that it had paid out $50,000 to Elmhurst Hospital Center by May 21, 2018. Country-Wide was under no further obligation to pay defendants once the policy limits were exhausted (see Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). Contrary to defendants’ contention, the affidavit by the no-fault claim supervisor, who had personal knowledge of the claim file and the procedures for processing no-fault claims, was sufficient to lay a foundation for admission of the documents as business records under CPLR 4518 (a) (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146, 146 [1st Dept 2003]).

In response to Country-Wide’s prima facie showing, defendants submitted no evidence at all, much less evidence sufficient to establish the existence of material issues of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, we reject defendants’ suggestion that Country-Wide was required to show that it complied with 11 NYCRR 65-3.15’s priority of payment rule to make its prima facie case, as defendants did not raise the issue as an affirmative defense in their answer although the answer contained more than 20 other affirmative defenses (see generally GMAC Mtge., LLC v Coombs, 191 AD3d 37, 50 [2d Dept 2020]; Aimatop Rest. v Liberty Mut. Fire Ins. Co., 74 AD2d 516, 517 [1st Dept 1980]).

We have considered defendants’ remaining contentions and find them unavailing. Concur—Manzanet-Daniels, J.P., Moulton, González, Rodriguez, Higgitt, JJ.

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